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Hill v. Commissioner of Social Security

United States District Court, E.D. California

August 31, 2017

DAVID PAUL HILL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          FINDINGS AND RECOMMENDATIONS

          CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, who is proceeding with retained counsel, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. Pending before the court are plaintiff's motion for summary judgment (Doc. 17) and defendant's cross-motion for summary judgment (Doc. 21). / / /

         I. PROCEDURAL HISTORY

         Plaintiff applied for social security benefits on June 4, 2012. In the application, plaintiff claims that disability began on December 1, 2002. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on July 29, 2014, before Administrative Law Judge (“ALJ”) Dante M Alegre. In an October 23, 2014, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1.The claimant has the following severe impairment(s): degenerative disc disease of the cervical spine;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the following residual functional capacity: the claimant can perform light work; he can lift and carry 20 pounds occasionally and 10 pounds frequently; he can sit, stand, and walk for 6 hours in an 8-hour day; he can frequently climb, balance, stoop, kneel, crouch, and crawl; he should avoid hazards;

4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, the claimant can perform his past relevant work as a security guard.

         After the Appeals Council declined review on May 17, 2016, this appeal followed.

         II. STANDARD OF REVIEW

         The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

         III. DISCUSSION

         In his motion for summary judgment, plaintiff argues: (1) the ALJ erred in determining that a number of plaintiff's impairments are not severe; (2) the ALJ erred in evaluating the medical opinions; (3) the ALJ failed to provide sufficient reasons for rejecting his testimony as not credible; (4) the ALJ failed to provide sufficient reasons for rejecting his mother's testimony; (5) the ALJ's residual functional capacity assessment is not supported by substantial evidence; and (6) the ALJ's determination that plaintiff can perform his past relevant work is not based on substantial evidence.

         A. Severity of Impairments

         In order to be entitled to benefits, the plaintiff must have an impairment severe enough to significantly limit the physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c).[1] In determining whether a claimant's alleged impairment is sufficiently severe to limit the ability to work, the Commissioner must consider the combined effect of all impairments on the ability to function, without regard to whether each impairment alone would be sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996); see also 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment, or combination of impairments, can only be found to be non-severe if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work. See Social Security Ruling (“SSR”) 85-28; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting SSR 85-28). The plaintiff has the burden of establishing the severity of the impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings. See 20 C.F.R. §§ 404.1508, 416.908. The plaintiff's own statement of symptoms alone is insufficient. See id.

         Plaintiff claims that the ALJ erred by not finding the following impairments to be severe: (1) lumbar spine impairment; (2) pain in upper and lower extremities; (3) mental impairments; (4) borderline intellectual functioning; (5) obsessive compulsive disorder; (6) obesity; and (7) carpal tunnel syndrome.

         1. Lumbar Spine Impairment

         As to plaintiff's lumbar spine impairment, the ALJ stated:

. . .[W]ith regard to his lumbar spine impairment, diagnostic imaging from October 9, 2007, reflected a diagnosis of mild degenerative disc disease of the lumbar spine area (Exhibit 2F, pp. 4-5). In spite of this diagnosis, the record reflects no significant complaints of lumbar pain or treatment targeting the lumbar area since the application date. Indeed, the recent medical records document problems related solely to the claimant's cervical, as opposed to the lumbar, area (Exhibit 16F). These mild findings and the lack of treatment indicate that his impairment would cause no more than minimal limitations in the claimant's ability to perform work. Accordingly, the undersigned finds that it is nonsevere.

         Without citation to any medical opinion evidence of record, plaintiff argues: “Even mild in a routine work setting. See 20 C.F.R. §§ 404.1521, 416.921. at all levels of the lumbar spine can certainly cause pain that has ‘more than slight or minimal' effect on Mr. Hill's ability to perform basic work activities, and is, therefore, severe.” Plaintiff also argues that “[i]t is entirely possible that Mr. Hill's lumbar spine could have deterioat[ed] over the years. . . .” Plaintiff's speculation about what could or might happen is immaterial in the absence of medical evidence indicating what, if any, effect plaintiff's lumbar spine impairment has on his ability to perform work-related activities. Because plaintiff has pointed to no such evidence, the court finds no error.

         2. Pain in Upper and Lower Extremities

         In arguing that the ALJ erred by failing to consider pain in the upper and lower extremities a severe impairment, plaintiff cites a medical source statement dated April 15, 2014, which documents limitations on his ability to lift, carry, stand, walk, and handle associated with cervical stenosis and degenerative disc disease. This medical source statement, however, is not supported by any references to objective medical findings. Moreover, nothing in the medical source statement indicates that the identified limitations are the result of pain in the extremities.

         3. Mental Impairments

         Plaintiff cites the opinions of two agency reviewing physicians who concluded that plaintiff has severe anxiety and is moderately limited in his ability to maintain attention and concentration for extended periods. Plaintiff, however, neglects to discuss the following portion of the reports:

The claimant is capable of sustaining attention and concentration to complete simple work. The prior 2007 opinion that the claimant is incapable of sustaining even simple and repetitive work activity for a normal work day or week is given no weight given that the claimant worked in the past, worked in prison, and has no evidence to indicate any deterioration in cognitive functioning.
See Certified Administrative Record, p. 92.

         Given the lack of evidence that any mental impairment more than minimally affected plaintiff's ability to work, the court finds no error in the ALJ's analysis.

         4. Borderline Intellectual Functioning

         Plaintiff argues that the ALJ ignored agency examining psychologist Dr. West's diagnosis of borderline intellectual functioning with a full scale IQ score of 75. Plaintiff also notes Dr. West's opinion that plaintiff has the persistence and pace for, at most, part-time work. A review of the hearing decision reflects that, contrary to plaintiff's assertion ...


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