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Pohlmann v. Colvin

United States District Court, S.D. California

May 12, 2017

CHRISTYANNA POHLMANN, an individual, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION RE CROSS-MOTIONS FOR SUMMARY [Doc. Nos. 16, 20]

          Hon. Karen S. Crawford United States Magistrate Judge

         Pursuant to Title 42, United States Code, Section 405(g), of the Social Security Act ("SSA"), plaintiff filed a Complaint to obtain judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying her disability insurance benefits.[1] Pursuant to Title 28, United States Code, Section 636(b)(1)(B), and Civil Local Rules 72.1(c)(1)(c) and 72.2(a), this matter was assigned to the undersigned Magistrate Judge for a Report and Recommendation.

         Presently before the Court are: (1) plaintiffs Motion for Summary Judgment [Doc. No. 16]; (2) defendant's Cross-Motion for Summary Judgment [Doc. No. 19]; (3) defendant's Response in Opposition to Plaintiffs Motion [Doc. No. 20]; (4) plaintiffs Reply to defendant's Opposition [Doc. No. 21]; and (5) the Administrative Record [Doc. No. 9.]. After careful consideration of the moving and opposing papers, as well as the Administrative Record and the applicable law, this Court RECOMMENDS that the District Court remand the case for further consideration by the Commissioner pursuant to the “fourth sentence” of Section 405(g) and enter a final judgment. Melkonyan v. Sullivan, 111 S.Ct. 2157 (1991); Sullivan v. Finkelstein, 110 S.Ct. 2658 (1990).

         I. Background and Procedural History.

         On March 24, 2014, plaintiff filed an application for a period of disability and disability insurance benefits (“DIB”) alleging disability beginning January 1, 2011. [AR 155-156.] Plaintiffs application states that she was born on July 29, 1979. Shesaidinher application she was unable to work due to (1) severe migraines; (2) depression; (3) posttraumatic stress disorder (“PTSD”); (4) Unilateral Pars Defect in her spine; and (5) stress incontinence. [AR 98.] On May 21, 2014, the Commissioner denied plaintiffs application for DIB. [AR 92-94.] Plaintiff requested reconsideration on July 14, 2014 [AR 95], but her request was denied on October 20, 2014. [AR 98-102.] On October 31, 2014, she requested a hearing before an administrative law judge (hereinafter “ALJ”). [AR 103-104.] A hearing before an administrative law judge was held on May 27, 2015. [AR 35-64.]

         On September 16, 2015, the ALJ issued a written opinion concluding that plaintiff did not qualify for DIB under the SSA. [AR 21-30.] In reaching this decision, the ALJ found that plaintiff has the severe impairments of “history of pars defect at ¶ 5-S1 of the lumbar spine; history of migraine headaches; history of herniated disc thoracic spine; alcohol dependence; and depression/mood disorder.” [AR 23.] However, the ALJ concluded she did not have an impairment or combination of impairments that meet SSA disability criteria and, as a result, would have the residual functional capacity to perform a full range of light work with no sustained interaction with supervisors, coworkers and the public. [AR 23-28.]

         On November 13, 2015, plaintiff requested review of the ALJ's decision by the Appeals Council. [AR 15-17.] However, on January 27, 2016, the Appeals Council denied plaintiffs request for review. [AR 1-3.]

         II. Standards of Review.

         The final decision of the Commissioner must be affirmed if it is supported by substantial evidence and if the Commissioner has applied the correct legal standards. Batson v. Comm'r of the Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under the substantial evidence standard, the Commissioner's findings are upheld if supported by inferences reasonably drawn from the record. Id. If there is evidence in the record to support more than one rational interpretation, the District Court must defer to the Commissioner's decision. Id. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). The Court must weigh both the evidence that supports and detracts from the administrative ruling. Tackett v. Apfel, 180F.3d1094, 1097 (9th Cir. 1999).

         Pursuant to Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Summary judgment motions, as defined by Fed.R.Civ.P. 56, contemplate the use of evidentiary material in the form of affidavits, depositions, answers to interrogatories, and admissions. In Social Security appeals, however, the Court may 'look no further than the pleadings and the transcript of the record before the agency, ' and may not admit additional evidence. Morton v. Califano, 481 F.Supp. 908, 914 n. 2 (E.D.Tenn.1978); 42 U.S.C. § 405(g). "[A]lthough summary judgment motions are customarily used [in social security cases], and even requested by the Court, such motions merely serve as vehicles for briefing the parties' positions, and are not a prerequisite to the Court's reaching a decision on the merits.” Kenney v. Heckler, 577 F.Supp. 214, 216 (D.C. Ohio 1983).

         III. Medical Evidence. [2]

         A. Disability Determinations by the Department of Veterans Affairs.

         The record includes medical records from the Department of Veterans Affairs indicating that plaintiff was a veteran of the Gulf War Era and that she served in the Navy from December 19, 2000 to March 1, 2006. [AR 153.] The record contains three disability rating decisions from the Department of Veterans Affairs. [AR 484-497, 498-505, 506-523.]

         In a decision dated April 19, 2013, from the Department of Veterans Affairs, plaintiffs overall service connected disability rating was 100%. [AR 486.] The Department of Veterans Affairs' decision was based on an overall assessment of plaintiffs service connected conditions. [AR 485-486.] Plaintiffs service connected disability for her sciatic nerve in her left and right legs with pars defect L5-S1 (sometimes also referred to as a “unilateral pars defect L5-S1”) was increased from 10% to 20%, effective October 30, 2012. [AR 484-486, 491-92.] Plaintiffs service connected disability for her major depressive disorder was increased from 50% to 70%, effective October 30, 2012. Id. Plaintiffs service connected condition of migraine headaches was found to be 30% disabling. [AR486.]

         In a decision dated November 26, 2013, from the Department of Veterans Affairs, plaintiff received a determination that her “stress incontinence” was 60% disabling. [AR 498-503.] The “reasons for decision” were as follows: (1) plaintiff was required to wear “absorbent materials which must be changed more than four times per day;” (2) plaintiff was waking up “to void five or more times per night;” and (3) plaintiffs “daytime voiding interval [was] less than one hour.” [AR 503.]

         In a decision dated March 3, 2014, from the Department of Veterans Affairs, plaintiffs overall service connected disability rating remained at 100%. [AR 148.] However, her disability rating for her evaluation of migraine headaches was increased from 30 percent disabling to 50 percent disabling, effective October 30, 2012. [AR 153-154.] In its determination, the Veterans Administration states:

Evaluation of migration headaches, which is currently 30 percent disabling, is increased to 50 percent effective October 30, 2012, the date we received your claim based on continuous prosecution. The overall disability picture demonstrates a level of functional impairment that more approximates that which is contemplated in the 50 percent evaluation criteria. An evaluation of 50 percent is assigned for very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability.
At the VA exam, you reported migraines 3-5 times per week with nausea, vomiting, changes in vision, and photo and phone sensitivity. The examiner noted there is evidence of very frequent prostrating and prolonged attacks of migraine headache pain, [sic] You reported missing 48 days from school in the past 12 months due to migraine headaches.

[AR154.]

         B. May 27, 2014 Hearing Before the ALJ.

         1. Plaintiffs Testimony.

         At the hearing, plaintiff testified that she was 35 years old, and had completed some college. [AR 38.] She testified that she had three children, two of whom lived with her. Id. Plaintiff testified that regarding her history with drug or alcohol problems, she had one “DUI” in 2013 but “since then [she hasn't] used alcohol.” [AR 38; AR 48.] She also testified ...


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