United States District Court, N.D. California, Eureka Division
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 16, 21
J. VADAS United States Magistrate Judge.
Plaintiff Juliene McCovey seeks judicial review of an
administrative law judge (“ALJ”) decision denying
her application for disability insurance benefits and
supplemental security income under Titles II and XVI of the
Social Security Act. Plaintiff's request for review of
the Administrative Law Judge's (“ALJ's”)
unfavorable decision was denied by the Appeals Council. The
ALJ's decision is the “final decision” of the
Commissioner of Social Security, which this court may review.
See 42 U.S.C. §§ 405(g), 1383(c)(3). Both
parties have consented to the jurisdiction of a magistrate
judge. (Docs. 6 & 7). For the reasons stated below, the
court will grant Plaintiff's motion for summary judgment,
and remand this action for further proceedings.
Commissioner's findings “as to any fact, if
supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). A district court
has a limited scope of review and can only set aside a denial
of benefits if it is not supported by substantial evidence or
if it is based on legal error. Flaten v. Sec'y of
Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir.
1995). Substantial evidence is “more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Sandgathe v. Chater,
108 F.3d 978, 979 (9th Cir. 1997). “In determining
whether the Commissioner's findings are supported by
substantial evidence, ” a district court must review
the administrative record as a whole, considering “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. 1998). The
Commissioner's conclusion is upheld where evidence is
susceptible to more than one rational interpretation.
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
OF RELEVANT MEDICAL EVIDENCE
medically determinable impairments are back pain, right hip
pain, right knee pain, right foot pain, right arm problems,
hepatitis, and headaches. (AR 249, 271-72, 526). Plaintiff
was injured in motor vehicle accidents in 1981 and 1999. (AR
62). Her back pain worsened in 2009. (AR 407). On June 1,
2010, her primary treating physician, Carl W. Bourne, M.D.,
stated that Plaintiff was unable to work, noting that she had
managed to work despite her chronic pain until August of 2009
when her symptoms had worsened, and that her pain had
recently increased. (AR 407).
was seen for joint pain in multiple sites throughout her
body. Treating provider Emmett Chase, listed the following
complaints on February 6, 2013, noting that they might be
related to her hepatitis rather than to arthritis: left
shoulder pain, right hand numbness, right knee and ankle
pain, and lumbar pain. On examination, he found swollen and
distorted fingers on the right hand. (AR 526).
her injuries in the 1999 rollover motor vehicle accident,
Plaintiff continued to complain of pain in her low back and
right leg. (AR 339). A lumbar spine x-ray dated August 11,
2009, showed degenerative disk disease at multiple levels,
with mild to moderate joint space narrowing at ¶ 5-S1,
mild degenerative changes at ¶ 4-5 and L5-S1, and slight
changes at ¶ 3-4. (AR 349).
Farnum, M.D., performed a consultative orthopedic evaluation
on September 18, 2010, and diagnosed degenerative lumbar disk
disease and probable chondromalacia patella on the right. He
found Plaintiff able to stand, walk, or sit up to six hours.
However, Dr. Farnum felt Plaintiff could lift fifty pounds
occasionally and twenty-five pounds frequently. (AR 363). Dr.
Farnum did not have access to the 2009 MRI showing moderate
foraminal narrowing at ¶ 5-S1. (AR 347).
for Plaintiff's chronic back pain included medication and
epidural steroids. (AR 332-344). By June 1, 2010,
Plaintiff's primary treating physician noted straight leg
raising was positive on the right, with decreased back
flexion. (AR 407). Plaintiff was examined by neurologist
Tiffany B. Ward, M.D., on April 2, 2012, for chronic
migraines and left arm numbness. Dr. Ward also found
bilateral radicular lower extremity pain. Straight leg raise
was positive on both sides, worse on the right. (AR 482-484).
knee pain with swelling and popping was noted on August 11,
2010. Plaintiff rated her pain when sitting at 6-7, and at 9
when walking. (AR 370). She was treated at Mad River Hospital
on August 6, 2011, for a right knee injury. (AR 422-426). On
December 28, 2011, she complained of ongoing knee pain, with
instability, popping, and swelling. (AR 468). The plaintiff
reported bilateral shoulder pain to Dr. Khalsa on December 1,
2011. He noted Plaintiff's history of an old left AC
separation, but examination of her shoulders was normal. (AR
FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING
person filing a claim for social security disability benefits
(“the claimant”) must show that she has the
“inability to do any substantial gainful activity by
reason of any medically determinable physical or mental
impairment” which has lasted or is expected to last for
twelve or more months. 20 C.F.R. §§
416.920(a)(4)(ii), 416.909. The ALJ must consider all
evidence in the claimant's case record to determine
disability (id. § 416.920(a)(3)), and must use
a five-step sequential evaluation to determine whether the
claimant is disabled (id. § 416.920).
“[T]he ALJ has a special duty to fully and fairly
develop the record and to assure that the claimant's
interests are considered.” Brown v. Heckler,
713 F.2d 441, 443 (9th Cir. 1983).
the ALJ evaluated Plaintiff's application for benefits
under the required five-step sequential evaluation. (AR
One, the claimant bears the burden of showing she has not
been engaged in “substantial gainful activity”
since the alleged date the claimant became disabled. 20
C.F.R. § 416.920(b). If the claimant has worked and the
work is found to be substantial gainful activity, the
claimant will be found not disabled. Id. The ALJ
found that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date. (AR 24).
Two, the claimant bears the burden of showing that she has a
medically severe impairment or combination of impairments. 20
C.F.R. § 416.920(a)(4)(ii), (c). “An impairment is
not severe if it is merely 'a slight abnormality (or
combination of slight abnormalities) that has no more than a
minimal effect on the ability to do basic work
activities.'” Webb v. Barnhart, 433 F.3d
683, 686 (9th Cir. 2005) (quoting S.S.R. No. 96-3(p) (1996)).
The ALJ found that Plaintiff suffered the following severe