United States District Court, S.D. California
REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR
SUMMARY JUDGMENT [ECF NOS. 15, 17]
Mitchell D. Dembin United States Magistrate Judge
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).
reasons expressed herein, the Court recommends that
Plaintiff's motion be DENIED and Defendant's motion
alleges that she became disabled on February 24, 2011, due to
degenerative disc disease, fibromyalgia, depression, fatigue,
back pain, and obesity. (A.R. 23). 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).
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.
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.
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).
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. §
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).
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)).
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).
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
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.
The ALJ's Decision
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).
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
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).
found that Plaintiff had the residual functional capacity
[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).
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.
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).
determining that Plaintiff is not disabled, the ALJ noted the
following to be of particular relevance:
Plaintiff's Physical Impairments
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.
Plaintiff's Reports and Testimony
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).
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.).
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.).
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).
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).