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Galkowski v. Colvin

United States District Court, S.D. California

April 25, 2017

KRISTINA LEA GALKOWSKI, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 15, 17]

          Hon. Mitchell D. Dembin United States Magistrate Judge

         Plaintiff Kristina Lea Galkowski (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Plaintiff's application for disability and disability insurance benefits under Title II for supplemental security income payments under Title XVI of the Social Security Act. Plaintiff moves the Court for summary judgment reversing the Commissioner and ordering an award of benefits, or, in the alternative, to remand the case for further administrative proceedings. (ECF No. 15). Defendant moved for summary judgment affirming the denial of benefits. (ECF No. 17).

         For the reasons expressed herein, the Court recommends that Plaintiff's motion be DENIED and Defendant's motion be GRANTED.

         I. BACKGROUND

         Plaintiff alleges that she became disabled on February 24, 2011, due to degenerative disc disease, fibromyalgia, depression, fatigue, back pain, and obesity. (A.R. 23).[1] Plaintiff's date of birth, September 9, 1980, categorizes her as a younger person on the alleged disability onset date. 20 C.F.R. §§ 404.1563, 416.963; (A.R. 35).

         A. Procedural History

         On July 18, 2012, Plaintiff filed an application for social security disability insurance benefits and supplemental security income. (A.R. 20). The claims were initially denied on October 31, 2012, and denied upon reconsideration on March 25, 2013. (Id.). On August 4, 2014, Plaintiff appeared at a hearing in San Diego, California before Administrative Law Judge (“ALJ”) Nancy M. Stewart. (Id.). Plaintiff, impartial medical expert Arthur Lorber, M.D. and impartial Vocational Expert (“VE”) Robin L. Generaux testified. (Id.).

         On October 22, 2014, the ALJ issued a written decision finding Plaintiff not disabled. (A.R. 21, 37). Plaintiff appealed, and the Appeals Council declined to review the ALJ's decision. (A.R. 1). Consequently, the ALJ's decision became the final decision of the Commissioner. (Id.).

         On April 18, 2016, Plaintiff filed a Complaint with this Court seeking judicial review of the Commissioner's decision. (ECF No. 1). On July 5, 2016, Defendant answered and lodged the administrative record with the Court. (ECF Nos. 9, 10). On September 1, 2016, Plaintiff moved for summary judgment. (ECF No. 15). On November 4, 2016, the Commissioner cross-moved for summary judgment and responded in opposition to Plaintiff's motion. (ECF Nos. 17, 18). Lastly, on November 18, 2016, Plaintiff replied to the Commissioner's response. (ECF No. 18).

         II. DISCUSSION

         A. Legal Standard

         The supplemental security income program provides benefits to disabled persons without substantial resources and little income. 42 U.S.C. § 1383. To qualify, a claimant must establish an inability to engage in “substantial gainful activity” because of a “medically determinable physical or mental impairment” that “has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1383(a)(3)(A). The disabling impairment must be so severe that, considering age, education, and work experience, the claimant cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 1383(a)(3)(B).

         The Commissioner makes this assessment through a process of up to five-steps. First, the claimant must not be engaged in substantial, gainful activity. 20 C.F.R. § 416.920(b). Second, the claimant must have a “severe” impairment. 20 C.F.R. § 416.920(c). Third, the medical evidence of the claimant's impairment is compared to a list of impairments that are presumed severe enough to preclude work. 20 C.F.R. § 416.920(d). If the claimant's impairment meets or is equivalent to the requirements for one of the listed impairments, benefits are awarded. Id. If the claimant's impairment does not meet or is not equivalent to the requirements of a listed impairment, the analysis continues to a fourth and possibly fifth step and considers the claimant's residual functional capacity. At the fourth step, the claimant's relevant work history is considered along with the claimant's residual functional capacity. If the claimant can perform the claimant's past relevant work, benefits are denied. 20 C.F.R. § 416.920(e). At the fifth step, if the claimant is found unable to perform the claimant's past relevant work, the issue is whether the claimant can perform any other work that exists in the national economy, considering the claimant's age, education, work experience, and residual functional capacity. If the claimant cannot do other work that exists in the national economy, benefits are awarded. 20 C.F.R. § 416.920(f).

         Section 1383(c)(3) of the Social Security Act, through Section 405(g) of the Act, allows unsuccessful applicants to seek judicial review of a final agency decision of the Commissioner. See 42 U.S.C. §§ 1383(c)(3), 405(g). The scope of judicial review is limited and the Commissioner's denial of benefits “will be disturbed only if it is not supported by substantial evidence or is based on legal error.” Brawner v. Secretary of Health & Human Services, 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)).

         Substantial evidence means “more than a mere scintilla” but less than a preponderance. Sandqathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews v. Shalala 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusions. Desrosiers v. Secretary of Health & Human Services, 846 F.2d 573, 576 (9th Cir. 1988). If the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). When the evidence is inconclusive, “questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

         The ALJ has a special duty in social security cases to fully and fairly develop the record in order to make an informed decision on a claimant's entitlement to disability benefits. DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). Because disability hearings are not adversarial in nature, the ALJ must “inform himself [or herself] about the facts relevant to his decision, ” even if the claimant is represented by counsel. Id. (quoting Heckler v. Campbell, 461 U.S. 458, 471 n.1 (1983)).

         Even if a reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978). Section 405(g) permits a court to enter a judgment affirming, modifying or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Administration for further proceedings. Id.

         B. The ALJ's Decision

         The ALJ concluded Plaintiff was not disabled, as defined in the Social Security Act, from February 24, 2011, through the date of the ALJ's decision, October 22, 2014. (A.R. 20).

         The ALJ found Plaintiff has the following severe impairments: degenerative disc disease, obesity, psychotic disorder and depressive disorder. (A.R. 23). The ALJ determined Plaintiff did not have an impairment or combination of impairments meeting or medically equivalent to the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (A.R. 24). Specifically, the ALJ found that “[n]o treating or examining physician has mentioned findings equivalent in severity to the criteria or any listed impairment, nor the does the evidence show medical findings that are the same or equivalent to those of any listed impairment.” (Id.). The ALJ considered listings 1.04, 12.03, and 12.04. (Id.).

         The ALJ also found that Plaintiff had mild restrictions in daily living activities, mild difficulties in social functioning, moderate difficulties with regard to concentration, persistence or pace and experienced no episodes of decompensation of extended duration. (A.R. 24-25).

         The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to:

[P]erform sedentary work . . . except [Plaintiff] can lift, carry, push or pull no more than 10 pounds, stand or walk no more than 2 hours, total, in an 8-hour workday, and for no more than 30 minutes at a time, sit for 6 hours in an 8-hour workday, with the ability to stand and stretch not more than 10 percent of the day; occasionally climb ramps and stairs, balance, stoop, kneel, and crouch, never climb ladders, ropes, or scaffolds, crawl, operate fast or dangerous machinery or drive commercial vehicles; never work in environments involving exposure to unprotected heights, or concentrated exposure to vibration; can perform no more than unskilled work, involving simple, repetitive tasks, and cannot perform fast paced work.

(A.R. 26). After reviewing the record and Plaintiff's testimony, the ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” (A.R. 28). The ALJ also found that the “record indicates that [Plaintiff's] severe mental impairments give rise to significant symptoms, which somewhat reduce her functional capacity, but also that these symptoms are not as severe as alleged.” (A.R. 32).

         Relying on the record and testimony of VE Generaux, the ALJ found that Plaintiff is unable to perform any past relevant work. (A.R. 35). The ALJ stated that the record reflects that Plaintiff worked as a general office clerk, order clerk, security guard, receptionist and ticket seller. (Id.). VE Generaux testified that each of these positions required an exertional level that Plaintiff could not perform at her current functional capacity. (Id.).

         The ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (A.R. 35). In determining this, the ALJ considered Plaintiff's RFC, that Plaintiff has at least a high school education, can communicate in English, is a “younger individual” and that transferable job skills are immaterial. (Id.). Based on this information, VE Generaux testified that Plaintiff can perform the occupations such as information clerk, mail clerk or charge account clerk. (A.R. 36). Accordingly, the ALJ found Plaintiff was not disabled from February 24, 2011 to the date of the ALJ's decision on October 22, 2014. (A.R. 36-37).

         In determining that Plaintiff is not disabled, the ALJ noted the following to be of particular relevance:

         1. Plaintiff's Physical Impairments

         In considering Plaintiff's underlying medically determinable physical impairments, the ALJ specifically referred to: (a) Plaintiff's own reports and testimony; (b) the medical record from 2011 until 2014; (c) the lay opinions of Robert Powers, Jr., Plaintiff's boyfriend, and Teresa Michelle Browning, Plaintiff's longtime friend; (d) Medical Expert Arthur Lorber, M.D.'s testimony; and (e) State consultative examiner Frederick W. Close, M.D.'s opinion.

         a. Plaintiff's Reports and Testimony

         Plaintiff's August 13, 2012, function report alleged that her impairments limited her ability to lift, walk, squat, sit, bend, kneel, stand, reach, and climb stairs. (A.R. 26, 288). She explained that she could walk for a quarter of a mile at a time, but could not walk longer than fifteen minutes and had to rest for ten to fifteen minutes before resuming. (A.R. 26, 288, 290). Plaintiff reported she could lift less than ten pounds, could not squat, bend, kneel, reach above her head, stand for more than fifteen minutes, or sit for more than one hour and could climb two flights of stairs at most. (A.R. 26-27, 290). She indicated that she could do light cleaning (with frequent breaks), read and use the computer, could shop in stores about once a week, handle money, could finish what she started, could follow written instructions very well and get along with authority figures. (A.R. 34, 283-90). However, Plaintiff said that she required several breaks to complete chores. (A.R. 27, 288, 290). Plaintiff also indicated that stress increased her pain levels and her back and nerve pain roused her frequently from sleep. (A.R. 27, 284). Socially, Plaintiff stated that she attended one party every couple of months and spent time with friends and family once a week every other week. (A.R. 34, 288). Overall, Plaintiff reported that her impairments affected her ability to cook, do housework, leave the house, and negatively impacted her social life. (A.R. 27, 248-86, 288).

         Plaintiff's initial disability report from July 31, 2012, reports that Plaintiff was taking Ativan, Flexeril, gabapentin, Norco, Prozac and trazodone. (A.R. 28, 257). Plaintiff reported taking Flexeril, gabapentin, Norco, Prozac, meloxicam and Robaxin in her May 3, 2013, hearing-level disability report. (A.R. 28, 314). At the hearing, Plaintiff testified that she was taking Norco, Mobic and gabapentin. (A.R. 28). Plaintiff said that gabapentin contributed to her fatigue, caused her to forget words and names, slur words, weave while walking, and caused short-term memory loss. (Id.).

         At the hearing, Plaintiff testified that her physical impairments have been treated for the most part with medication and that her doctors would consider surgery if the medication stopped working. (A.R. 27). She also stated that physical therapy did not completely alleviate all of her pain and doctors never recommended epidurals or use of a back-brace or cane. (Id.). While Plaintiff was urged to lose weight, she testified that she was not generally physically capable of losing weight. (Id.).

         Plaintiff's hearing-level disability report from May 3, 2013, reports increased pain and fatigue. (A.R. 27, 308). Plaintiff reported involuntary muscle twitches, further disc degeneration in her cervical spine and deteriorated sleep patterns, decreasing the length of time she can stand. (A.R. 27, 308). As a result, Plaintiff reported an inability to do laundry on her own, drive longer than ten miles or at night, care for her grandmother, shop by herself, bathe on a daily basis and can only cook using the microwave or oven. (A.R. 27, 308). At the hearing, Plaintiff testified that she spends a lot of time on the couch, could cook food in the microwave or oven, but could not stand at a stove, did not bathe unless necessary because standing in the shower is too painful and she cannot sit in the tub, and that she generally did not perform household chores, but washes dishes when there are no clean ones. (A.R. 27).

         At the hearing, the ALJ observed that Plaintiff exhibited discomfort and asked to stand on several occasions. (Id.). W. Davis, the field office employee who helped Plaintiff complete her initial disability report, noted that Plaintiff squirmed in her seat and complained of pain after the interview. (A.R. 31, 253).

         b. 2011-2014 ...


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