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Brown-Borges v. Commissioner of Social Security

United States District Court, E.D. California

March 29, 2018




         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. 19) and defendant's cross-motion for summary judgment (Doc. 23).


         Plaintiff applied for social security benefits on August 29, 2012. In the application, plaintiff claims that disability began on October 29, 2008. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on July 10, 2014, before Administrative Law Judge (“ALJ”) L. Kalei Fong. In a December 19, 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 lumbar spine with radiculopathy;
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; and
4. Considering the claimant's age, education, work experience, residual functional capacity, and the Medical-Vocational Guidelines, rule 202.21, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

         On April 29, 2016, the Appeals Council granted review. In a July 1, 2016, decision, the Appeals Council adopted the ALJ's disability decision. In particular, the Appeals Council adopted the ALJ's credibility finding. The Appeals Council, however, did not adopt the ALJ's conclusion that plaintiff's mental impairment of depression and anxiety moderately impact her activities of daily living. In this regard, the Appeals Council stated:

. . .As the hearing decision properly notes (HD p.5/12), the claimant herself reported that she is independent in all activities of daily living and industrial activities of daily living (Ex. 3F/1). Moreover, the claimant has attributed any difficulties with activities of daily living to side effects from narcotic pain medication taken to relieve her physical pain. The claimant's mental status examinations revealed that she had no intellectual deficits or short-term memory deficits and her judgment and insight were intact. The claimant has only mild limitations regarding maintaining concentration, persistence and pace. Therefore, the evidence in the record indicates that the claimant's mental impairment mildly restricts activities of daily living; presents mild difficulties in maintaining social functioning, results in mild deficiencies in concentration, persistence or pace; and has produced no episodes of deterioration or decompensation in work or work- like settings. The Appeals Council notes that not only did the record not support the decision finding of moderate functional limitations in activities of daily living, the hearing decision did not indicate any residual functional limitations resulting from a moderate limitation in activities of daily living. The mild limitations in all functional areas and the non-severe mental impairments conclusions are also consistent with the conclusions of the state agency medical examiners and the record as a whole.

         The Appeals Council made the following additional relevant findings and conclusions:

1. The claimant has the severe impairment of degenerative disc disease of the lumbar spine with radiculopathy;
2. The claimant has the residual functional capacity to perform light work; and
3. Applying Grid rule 202.21, plaintiff is not disabled.


         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).


         In her motion for summary judgment, plaintiff argues: (1) the Appeals Council erred by applying Grid rule 202.21; (2) the Appeals Council erred by adopting the ALJ's credibility and residual functional capacity assessments without considering the side effects of medication; and (3) the Appeals Council erred by accepting the ALJ's improper assessment of plaintiff's mental impairments as non-severe.

         A. Severity of Plaintiff's Mental Impairment

         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 ...

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