Tate v. Comm'r of Soc. Sec.

• Decision Date: 21 August 2014
• Docket Number: No. 2:12-cv-2420-JAM-CMK,2:12-cv-2420-JAM-CMK
• Court: U.S. District Court — Eastern District of California
• Parties: HEIDI C. TATE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

HEIDI C. TATE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 2:12-cv-2420-JAM-CMK

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 21, 2014

FINDINGS AND RECOMMENDATION

Plaintiff, who is proceeding without 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 (Docs. 12, 22) and defendant's cross-motion for summary judgment (Doc. 25).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on March 24, 2009, with a protective filing date of March 13, 2009, alleging an onset of disability on July 1, 2000, due to disabilities including disorders of the back and affective mood disorder. (Certified administrative record ("CAR") 69-70, 74-75, 129-38, 169-81). Plaintiff's claim was denied initially and upon reconsideration. Plaintiff requested an administrative hearing, which was held on November 3,2010, before Administrative Law Judge ("ALJ") Carol L. Buck. In a April 20, 2011, decision, the ALJ concluded that plaintiff is not disabled¹ based on the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2006.

2. The claimant engaged in substantial gainful activity since September 2010 (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe impairments: left shoulder pain due to degenerative joint disease; neck pain due to degenerative disc disease of the cervical spine; mild scoliosis; bilateral carpal tunnel syndrom; depression; history of cannabis abuse (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 carry 5 pounds frequently and 10 pounds occasionally; stand or walk for 4 hours total out of an 8-hour workday with breaks every 2 hours; no climbing ladders, ropes of scaffolds; no overhead work with the left upper extremity; no sustained prolonged motion of the neck; and mentally limited to unskilled work due to her history of cannabis abuse and depression.

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

7. The claimant was born on December 20, 1963 and was 36 years old, which is defined as a younger individual age 18-44, 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 Part 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 July 1, 2000, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

After the Appeals Council declined review on August 2, 2012, 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

To achieve uniformity of decisions, the Commissioner has promulgated regulations which contain, inter alia, a five-step sequential disability evaluation to determine whether a claimant is physically and/or mentally disabled. (20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).) If during any point of this review, it is determined that the claimant is not disabled, the claim is not to be considered further. (20 C.F.R. §§ 404.1520(a) and 416.920(a).) The five-step process is summarized as follows:

1. Determination of whether the claimant is engaged in substantial gainful activity, and if so engaged, the claimant is not presumed disabled and the analysis ends;

2. If not engaged in substantial gainful activity, determination of whether the claimant has a severe impairment; if the claimant does not, the claimant is not presumed disabled and the analysis ends;3. If the claimant has a severe impairment, determination of whether any such severe impairment meets any of the impairments listed in the regulations;² if the claimant does have such an impairment, the claimant is disabled and the analysis ends;³

4. If the claimant's impairment is not listed, determination of whether the impairment prevents the claimant from performing his or her past work;⁴ if the impairment does not, the claimant is not presumed disabled and the analysis ends; and

5. If the impairment prevents the claimant from performing his or her past work, determination of whether the claimant can engage in other types of substantial gainful work that exist in the national economy;⁵ if the claimant can, the claimant is not disabled and the analysis ends.

To qualify for benefits, a claimant must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months. (42 U.S.C. § 1382c(a)(3)(A).) A claimant must show that he or she has a physical or mental impairment of such severity that he or she is unable to do his or her previous work and cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy. (Quang Van Han v. Bower, 882 F.2d 1453, 1456 (9^th Cir. 1989).)

The claimant has the initial burden of proving the existence of a disability within the meaning of the Act. (Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).) The claimantestablishes a prima facie case of disability by showing that a physical or mental impairment prevents him from engaging in his previous occupation (steps 1 through 4 noted above). (Gallant v. Heckler, 753 F.2d 1450, 1452 (9^th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f).) However, once the claimant establishes a prima facie case of disability, the burden of going forward with the evidence shifts to the Commissioner. (Burkhart v. Bowen, 856 F.2d 1335, 1340 (9^th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9^th Cir. 1986); see Hammock v. Bowen, 867 F.2d 1209, 1212-1213 (9^th Cir. 1989).) The Commissioner has the burden to establish the existence of alternative jobs available to the claimant, given his or her age, education, and medical-vocational background (step 5 noted above). In an appropriate case, the Secretary may meet this burden through application of the medical-vocational guidelines set forth in the regulations.⁶ (See 20 C.F.R. Pt. 404, Subpt. P, App. 2; Heckler v. Campbell, 461 U.S. 458 (1983); Olde v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983).) If the guidelines do not accurately describe a claimant's limitations, the Commissioner may not rely on them alone to show availability of jobs for the claimant. (See Desrosiers v. Secretary, 846 F.2d 573, 577 (9th Cir. 1988).)⁷

In her motion for summary judgment, plaintiff appears to be claiming the ALJ erred in three ways: (1) finding she had engaged in substantial work; (2) finding plaintiff not credible; and (3) the evaluation of the medical evidence. She also argues new evidence was notconsidered that supports her claim.

A. SUBSTANTIAL WORK

To the extent plaintiff argues the ALJ erred in finding she engaged in substantial work, this argument lacks a factual basis. In the first part of the evaluation of plaintiff's claim, the ALJ stated:

The claimant testified that after the alleged onset date, she returned to work as an assistant cook at a senior nutrition center in September 2010. She has been working on a schedule of five and one-half hours per day for five days per week. She earns $9.38 per hour (which amounts to $1,050 per month). The amount of her work and her

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