Whiite v. Comm'r of Soc. Sec.

• Decision Date: 28 September 2017
• Docket Number: No. 2:16-cv-0706-TLN-CMK,2:16-cv-0706-TLN-CMK
• Parties: KENDRA T. WHIITE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of California

KENDRA T. WHIITE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 2:16-cv-0706-TLN-CMK

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 28, 2017

FINDINGS AND RECOMMENDATION

Plaintiff, who is proceeding pro se, 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. 15), defendant's cross-motion for summary judgment (Doc. 16) and plaintiff's reply (Doc. 17).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on July 29, 2013, alleging an onset of disability on July 28, 2013, due to disabilities including seizure disorder (Certified administrative record ("CAR") 78-79, 86-88, 98-99, 194-95, 199-203). Plaintiff's claim was denied initially and upon reconsideration. Plaintiff requested an administrative hearing, which was held on July 27, 2015, before Administrative Law Judge ("ALJ") Robert C. Tronvig, Jr. In an October 23, 2015, 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 December 31, 2016.

2. The claimant has not engaged in substantial gainful activity since July 28, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: seizure 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 a full range of work at all exertional levels but with the following nonexertional limits: she must avoid hazards such as moving machinery and heights.

6. The claimant is capable of performing past relevant work as a tax technician. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).

7. The claimant has not been under a disability, as defined in the Social Security Act, from July 28, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(CAR 19-28). 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's opinion is wrong because she cannot work and her condition is getting worse. She also argues that the jobs the vocational expert found her capable of do not match her limitations and skills. She further contends that she has never been cleared medially to return to work, and that the medical evaluations were rendered prior to receiving all of her medical records. The undersigned interprets these arguments as a challenge to the ALJ's evaluation of the medical opinions, the residual functional capacity (RFC) assessment, and the vocational expert's testimony.

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. See 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. See Quang Van Han v. Bower, 882 F.2d 1453, 1456 (9th Cir. 1989).

The claimant has the initial burden of proving the existence of a disability within the meaning of the Act. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). The claimant establishes 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). See Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); 20 CFR §§ 404.1520(f) and 416.920(f). Once the claimant establishes a prima facie case of disability, the burden of going forward with the evidence shifts to the Commissioner. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); see Hammock v. Bowen, 867 F.2d 1209, 1212-1213 (9th 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). In an appropriate case, the Secretary may meet this burden through application of the medical-vocational guidelines set forth in the regulations.² See 20 CFR 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).³

A. Medical Opinions

As to the medical evidence, after setting forth the treatment evidence in the record and finding plaintiff's seizure disorder to be a severe impairment, the ALJ found plaintiff had the residual functional capacity to perform a full range of work with limitations as to hazardous situation such as moving machinery and heights. In making this determination, the ALJ stated:

the undersigned notes that the claimant has not provided treating opinion evidence from a physician that she is precluded from performing work activity. The record does include a Work Status Report from Amy Maureen Oliver, MD who placed the claimant off work on August 12, 2013 (Ex. 1F). Similarly, in August 2013, Shirley Rigg, FNP stated that the claimant would be unable to preform her usual work duties for 60 days (Ex. 3F, 4F/7). These statements are given little weight. Dr. Oliver's statement wasbased on a brief, one-time visit to emergency care and not on a treating relationship. These opinions provide no specific functional work limitations. Additionally, temporary disability is not contemplated in the regulations. Disability is an administrative finding requiring familiarity with the Regulations and is reserved to the Commissioner (20 CFR 404.1527(e), 416.927(e) and Social Security Ruling 96-5p).

Moreover, these statements conflict with Nurse Rigg's opinions of August 2013 and October 2013 that the claimant could perform work that does not require climbing heights/ladders or operating/driving machinery such as a forklift. Nurse Rigg stated that the claimant could work in a clerical position (Ex. 4F/12, 6F).

Consistent with 20 CFR 404.1513(d)(4), 416.913(d)(4) and SSR 06-03p, these opinions, though provided by a non-medical source, are given great weight because they are consistent with the totality of the evidence available in the record. Nurse Rigg was a treating source and her opinions were based on direct examination, personal observation and objective testing.

State agency medical consultants A. Pan, MD and S. Amon, MD agreed with this assessment and found that the claimant should avoid hazards at work such as unprotected heights and dangerous machinery (Ex. 1A, 3A); these opinions are consistent with Nurse Rigg's assessment.

These State agency medical consultants' opinions are given great weight because they are consistent with the opinion of the claimant's treating source. The consultants are familiar with Social Security rules and provide an assessment that is consistent with the claimant's functioning as discussed above.

In reaching this conclusion, the undersigned acknowledges that the claimant has an impairment that causes some limitations of her ability to perform basic work activities. Indeed, the assessment of the claimant's residual functional capacity allows for many of her subjective complaints. As discussed above, however, the extent to which the claimant alleges an inability to perform any significant work activities on a sustained basis are not found to be fully credible when considered in light of the entirety of the

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