Martin v. Comm'r of Soc. Sec.

• Decision Date: 27 March 2018
• Docket Number: No. 2:16-cv-0860-MCE-CMK,2:16-cv-0860-MCE-CMK
• Court: U.S. District Court — Eastern District of California
• Parties: MICHELLE A. MARTIN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

MICHELLE A. MARTIN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 2:16-cv-0860-MCE-CMK

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 27, 2018

FINDINGS AND RECOMMENDATION

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pending before the court are plaintiff's motion for summary judgment (Doc. 19) and defendant's cross-motion for summary judgment (Doc. 24).

I. PROCEDURAL HISTORY¹

Plaintiff applied for social security benefits protectively on April 30, 2012, alleging an onset of disability on August 1, 2011, due to chronic low back pain, depression,anxiety, bipolar, neck pain, pain and numbness in upper and lower extremities, headaches, disorders of back, affective mood disorders, planter fasciitis (Certified administrative record ("CAR") 120, 142-44, 172-73). Plaintiff's claim was denied initially and upon reconsideration. Plaintiff requested an administrative hearing, which was held on September 11, 2014, before Administrative Law Judge ("ALJ") Peter F. Belli. In an October 20, 2014, decision, the ALJ concluded that plaintiff is not disabled² based on the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2016.

2. The claimant has not engaged in substantial gainful activity since August 1, 2011, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: degenerative disc disease of the cervical spine, degenerative disc disease of the lumbar spine, degenerative disc disease of the thoracic spine, carpal tunnel syndrome (CTS), obesity, early stages of osteoporosis, planter fasciitis and calcaneal spurs in both feet, depressive disorder, bipolar disorder and anxiety disorder. (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform less than a full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). She can lift, carry, push and/or pull 20 pounds occasionally and ten pounds frequently. She can sit for eight hours in an eight-hour work day, but needs a sit/stand option at will at the workstation. She can sit 30-to-40 minutes at a time. She can stand and walk six hours in an eight-hour workday with normal breaks, but is precluded from prolonged walking or standing and must be permitted to change positions every 20-to-30 minutes. She is precluded from climbing ladders, ropes and scaffolds. She can occasionally stoop, crouch, crawl and kneel. She can frequently perform both gross and fine manipulation. She has the capacity to receive, understand, remember and carry out simple job instructions, can only occasionally perform detailed job instructions, and is precluded from performing complex job instructions. She can interact appropriately with the general public, coworkers and supervisors. She is capable of making work place judgments and can adjust to simple changes in the workplace.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on April 20, 1961 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Park 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from August 1, 2011, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(CAR 19-33). After the Appeals Council declined review on February 26, 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

Plaintiff argues the ALJ erred in five ways: (1) determining the severity of plaintiff's impairments; (2) rejecting the opinions of the treating and examining physicians; (3) rejecting plaintiff's testimony and lay witness statements; (4) formulating her Residual Functional Capacity (RFC); (5) and finding plaintiff can perform other work. Plaintiff is requesting this case be remanded for an award of benefits.

A. Step Two Severity

Plaintiff contends the ALJ erred in determining her fibromyalgia, headaches, myalgia and myositis, and chronic pain syndrome were not severe. She argues the ALJ erred in finding she does not have a medically determinable impairment of fibromyalgia, that her headaches are not severe, and by ignoring her diagnosis of myalgia and myositis as well as chronic pain syndrome. Defendant counters that plaintiff's diagnosis of possible fibromyalgia does not meet the requirements for finding a severe impairment, there is no evidence that plaintiff's headaches were a severe impairment, and that the ALJ did not err in not addressing the other diagnosis at step two especially as the ALJ took plaintiff's credible pain symptoms into account.

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).³ 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). "Step two, then, is 'a de minimis screening device [used] to dispose of groundless claims,' and an ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is 'clearly established by medical evidence.'" Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); S.S.R. 85-28). The plaintiff has the burden of providing medical evidence of signs, symptoms, and laboratory findings that show that his or her impairments are severe and are expected to last for a continuous period of twelve months. Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005); see also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii), 416.909, 416.920(a)(4)(ii). An ALJ's finding that a claimant is not disabled at step two will be upheld where "there are no medical signs or laboratory findings to substantiate the existence of medically determinable physical or mental impairment." Ukolov, 420 F.3d at 1005. The plaintiff's own statement of symptoms alone is insufficient.

In this case, the medical records do not provide an extensive history of fibromyalgia, nor are there any notations from an acceptable medical source regarding fibromyalgia. Plaintiff was first diagnosed with possible fibromyalgia on May 14, 2013. (CAR 553). Nurse Practitioner Linda Morrison-Ory noted that plaintiff's multiple aches and pains were consistent with fibromyalgia, after plaintiff apparently filled out a fibromyalgia handout. FNP Morrison-Ory noted that plaintiff has "body pain...