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Burr v. Commissioner of Social Security

United States District Court, E.D. California

March 27, 2018

TERRY ANN BURR, Plaintiff,



         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. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 16) and defendant's cross-motion for summary judgment (Doc. 18).


         Plaintiff applied for social security benefits on October 27, 2011. In the application, plaintiff claims that disability began on September 16, 2011. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on January 28, 2014, before Administrative Law Judge (“ALJ”) Bradlee S. Welton. In a July 2, 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): obesity; degenerative disc disease of the lumbar and cervical spine with chronic pain; left hip arthritis; and mild right carpal tunnel syndrome;
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: she can perform a range of light work; she can sit/stand/walk for six hours in an eight-hour day with regular breaks; she must have the option to sit or stand at will; she can perform frequent handling and fingering;
4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

         After the Appeals Council declined review on December 7, 2015, this appeal followed.


         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).


         Plaintiff argues: (1) the ALJ erred in determining that certain impairments are not severe; (2) the ALJ failed to provide sufficient reasons for rejecting the opinions of treating doctors; (3) the ALJ failed to provide sufficient reasons for rejecting her testimony as not credible; and (4) due to these errors, the remainder of the ALJ's sequential analysis is flawed.

         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 argues that the ALJ erred in failing to find the following impairments to be severe: (1) fibromyalgia; (2) chronic pain syndrome; and (3) mental impairments.

         1. Fibromyalgia

         Regarding fibromyalgia, the ALJ stated:

The undersigned finds fibromyalgia is not a medically determinable impairment because neither of the two sets of criteria for diagnosing fibromyalgia described in . . . SSR 12-2p are met. Notably, treatment records do not document ongoing evaluation and treatment for fibromyalgia. In fact, the only evidence of purported tender points is dated November 20, 2013, accompanying a medical source statement from treating sources, Betty Lebrun, FNP, and Delbert Beiler, M.D. (Ex. 21F, p. 4). Interestingly, the first and only mention of fibromyalgia appearing in the treatment records from these providers is documented on the same day the claimant presented requesting an evaluation for Social Security, on November 20, 2013 (Ex. 20F, p. 3). At the hearing, the claimant admitted testing for fibromyalgia was performed by a nurse practitioner, Ms. Lebrun, who is not an acceptable medical source. Accordingly, the undersigned finds fibromyalgia is not a medically determinable impairment.

         The court finds no error in the ALJ's analysis. Under Social Security Rule 12-2p, the only medical source who can provide evidence of fibromyalgia is a licensed physician. While generally plaintiff is correct that a nurse practitioner working under the close supervision of a physician can, in some instances, be considered an acceptable medical source, such is not the case for evidence of fibromyalgia. ...

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