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McCovey v. Colvin

United States District Court, N.D. California, Eureka Division

March 24, 2017



          NANDOR J. VADAS United States Magistrate Judge.

         Order 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.


         The 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. 2005).


         Plaintiff's 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).

         Plaintiff 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).

         Since 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).

         Daniel 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).

         Treatment 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).

         Right 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 475-477).


         A 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).

         Here, the ALJ evaluated Plaintiff's application for benefits under the required five-step sequential evaluation. (AR 18-32).

         At Step 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).

         At Step 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 ...

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