HOVATER v. ASTRUE

JAMES HUTTON, Magistrate Judge

BEFORE THE COURT are cross-motions for summary judgment noted for hearing without oral argument on May 29, 2009. (Ct. Rec. 12, 15). Attorney Lora Lee Stover represents Plaintiff; Special Assistant United States Attorney David J. Burdett represents the Commissioner of Social Security ("Commissioner"). The parties have consented to proceed before a magistrate judge. (Ct. Rec. 6.) After reviewing the administrative record and the briefs filed by the parties, the court GRANTS Plaintiff's Motion for Summary Judgment (Ct. Rec. 12) and remands for further administrative proceedings. Defendant's Motion for Summary Judgment (Ct. Rec. 15) is DENIED.

Plaintiff protectively filed applications for disability insurance benefits (DIB) and for supplemental security income (SSI) benefits on April 29, 2005. Plaintiff has alleged suffering from fibromyalgia, Raynaud's syndrome, chronic fatigue, PTSD, depression, and anxiety. (Tr. 51-52, 55, 79-83, 115-116, 126, 130.) Both applications allege onset as of February 14, 2001. (Tr. 79-83.) The applications were denied initially and on reconsideration. (Tr. 51-52, 55-58.)

At a hearing before Administrative Law Judge (ALJ) Richard A. Say on June 5, 2007, plaintiff, represented by counsel, vocation expert Sharon Welter, and psychologist W. Scott Mabee, Ph.D., testified. (Tr. 523-552.) On July 26, 2007, the ALJ issued an unfavorable decision. (Tr. 27-40.) The Appeals Council denied review on September 9, 2008. (Tr. 7-9.) Therefore, the ALJ's decision became the final decision of the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review pursuant to 42 U.S.C. § 405(g) on October 15, 2008. (Ct. Rec. 1, 4.)

The facts have been presented in the administrative hearing transcripts, the ALJ's decision, the briefs of both Plaintiff and the Commissioner, and are summarized here.

Plaintiff was 29 years old at the time of the hearing. (Tr. 531.) She lives alone with her daughter, age eight, and her son, who is four months old. (Tr. 532.) She has a high school education and became a certified nurse's assistant in 2001. (Tr. 121-122.) Plaintiff has past relevant work as a telephone solicitor, fast food worker, housekeeper, day care worker, and cashier. (Tr. 117, 533.) Plaintiff lost her job as of February 14, 2001. She was seeing to her primary care physician repeatedly due to an inability to move her arms. (Tr. 532-533.) Plaintiff testified that fibromyalgia prevents her from working. (Tr. 533.) She "catches pretty much anything that's out there" if she goes out in public. Chronic pain prevents walking sometimes, and her anxiety at times is as bad as the pain. (Tr. 533-534.) Plaintiff and her daughter cook and do laundry. Plaintiff drives, shops, cares for her infant son, cleans with rest breaks, and reads. (Tr. 534-535.) She drinks once every two weeks and smokes marijuana once or twice a week. (Tr. 537.) Plaintiff can sit for 45 minutes, stand for 30 minutes before needing to change position, and walk for 15 to 20 minutes. (Tr. 536.) Her hands shake and she has problems grasping. (Tr. 537.) Plaintiff sees a psychiatrist once every two or three months. (Tr. 538.) She has a migraine headache once a week lasting two days. (Tr. 540.) Medication side effects include nausea and drowziness. (Tr. 539-540.)

The Social Security Act (the "Act") defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a Plaintiff shall be determined to be under a disability only if any impairments are of such severity that a plaintiff is not only unable to do previous work but cannot, considering plaintiff's age, education and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9^th Cir. 2001).

The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, the decision maker proceeds to step two, which determines whether plaintiff has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

If plaintiff does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compares plaintiff's impairment with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed impairments, plaintiff is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents plaintiff from performing work which was performed in the past. If a plaintiff is able to perform previous work, that Plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, plaintiff's residual functional capacity ("RFC") assessment is considered. If plaintiff cannot perform this work, the fifth and final step in the process determines whether plaintiff is able to perform other work in the national economy in view of plaintiff's residual functional capacity, age, education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).

The initial burden of proof rests upon plaintiff to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9^th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9^th Cir. 1999). The initial burden is met once plaintiff establishes that a physical or mental impairment prevents the performance of previous work. The burden then shifts, at step five, to the Commissioner to show that (1) plaintiff can perform other substantial gainful activity and (2) a "significant number of jobs exist in the national economy" which plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9^th Cir. 1984).

Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold the Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9^th Cir. 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9^th Cir. 1999). "The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9^th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9^th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9^th Cir. 1989); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9^th Cir. 1988). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9^th Cir. 1965). On review, the Court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9^th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9^th Cir. 1980)).

It is the role of the trier of fact, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9^th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9^th Cir. 1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9^th Cir. 1987).

At the outset, the ALJ found plaintiff met the DIB requirements through December 31, 2006. (Tr. 29.) [The ALJ noted plaintiff previously applied for benefits and was denied in 2002. He declined reopening the previous denial determination. Tr. 27.] The ALJ found at step one that, although she has worked sporadically since onset, plaintiff has not engaged in substantial gainful activity. (Tr. 29-30.) At steps two and three, the ALJ found that plaintiff suffers from depression, anxiety, migraine headaches, and chronic pain, impairments that are severe but which do not alone or in combination meet or medically equal a Listing impairment. (Tr. 30, 36.) The ALJ found plaintiff less than completely credible. (Tr. 38.) Prior to step four, the ALJ found plaintiff's RFC enables her to perform a range of light work. (Tr. 37.) Relying on the VE, the ALJ found that a person with this RFC could perform plaintiff's past relevant work as a telephone solicitor, fast food worker, housekeeper/cleaner, nursery school attendant/daycare worker, and cashier. (Tr. 39-40.) Because the ALJ's step four finding that plaintiff could perform her past relevant work was determinative, the ALJ was not required to proceed to step five. The ALJ found plaintiff is not disabled as defined by the Social Security Act. (Tr. 40.)

Plaintiff contends that the Commissioner erred as a matter of law by failing to (1) properly weigh the medical evidence, specifically the opinions of treating Drs. Jon Stevenson, M.D. (rheumatologist), and Paul Srei, M.D.,; (2) include fibromyalgia as a severe impairment; (3) properly assess plaintiff's credibility, and (4) adopt or reject the moderate limitation with respect to pace assessed by Dr. Mabee. (Ct. Rec. 13 at 10-15.) The Commissioner responds that the ALJ appropriately weighed the evidence and asks the Court to affirm his decision. (Ct. Rec. 16 at 12). The last issue is dispositive.

In social security proceedings, the claimant must prove the existence of a physical or mental impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings; the claimant's own statement of symptoms alone will not suffice. 20 C.F.R. § 416.908. The effects of all symptoms must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptoms. 20 C.F.R. § 416.929. Once medical evidence of an underlying impairment has been shown, medical findings are not required to support the alleged severity of symptoms. Bunnell v. Sullivan, 947, F. 2d 341, 345 (9^th Cr. 1991).

A treating physician's opinion is given special weight because of familiarity with the claimant and the claimant's physical condition. Fair v. Bowen, 885 F. 2d 597, 604-05 (9^th Cir. 1989). However, the treating physician's opinion is not "necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9^th Cir. 1989) (citations omitted). More weight is given to a treating physician than an examining physician. Lester v. Cater, 81 F.3d 821, 830 (9^th Cir. 1996). Correspondingly, more weight is given to the opinions of treating and examining physicians than to nonexamining physicians. Benecke v. Barnhart, 379 F. 3d 587, 592 (9^th Cir. 2004). If the treating or examining physician's opinions are not contradicted, they can be rejected only with clear and convincing reasons. Lester, 81 F. 3d at 830. If contradicted, the ALJ may reject an opinion if he states specific, legitimate reasons that are supported by substantial evidence. See Flaten v. Secretary of Health and Human Serv., 44 F. 3d 1435, 1463 (9^th Cir. 1995).

In addition to the testimony of a nonexamining medical advisor, the ALJ must have other evidence to support a decision to reject the opinion of a treating physician, such as laboratory test results, contrary reports from examining physicians, and testimony from the claimant that was inconsistent with the treating physician's opinion. Magallanes v. Bowen, 881 F.2d 747, 751-52 (9^th Cir. 1989); Andrews v. Shalala, 53 F.3d 1042-43 (9^th Cir. 1995).

Plaintiff contends that the ALJ failed to properly credit Dr. Mabee's assessed moderate limitation with respect to pace. The Commissioner does not respond to this argument.

The ALJ's RFC in his written decision and in his verbal hypothetical to the VE do not include the moderate limitation with respect to pace. The ALJ does not discuss why this limitation is adopted or rejected. It is significant in this case, because as plaintiff points out, the VE testified that no work is available to a person with a moderate pace limitation. (Tr. 548-549.)

To the extent the ALJ rejects the contradicted opinions of some of the professionals, the reasons must be legitimate, specific, and supported by substantial evidence in the record. See Lester v. Chater, 81 F. 3d 821, 830-831 (9^th Cir. 1995) (holding that the ALJ must make findings setting forth specific, legitimate reasons for rejecting the treating physician's contradicted opinion).

The ALJ discusses the opinion of examining psychologist James Bailey, Ph.D., and arguably this opinion is the reason the ALJ failed to specifically adopt or reject Dr. Mabee's assessed moderate limitation, but the record is unclear. As noted, this is a limitation which, according to the VE, if adopted precludes all competitive employment. The ALJ's failure to provide any reason for failing to adopt or reject this limitation is not harmless error. The Commissioner does not address the argument. A remand for further administrative proceedings is required.

On remand, the following should be determined: whether fibromyalgia is a severe impairment; a new RFC; an examination of plaintiff's DAA and its effects, if any, on her diagnoses; and new determinations at steps four and five if necessary.

The court expresses no opinion as to what the ultimate outcome on remand will or should be. The fact-finder is free to give whatever weight to the evidence is deemed appropriate. See Sample v. Schweiker, 694 F. 2d 636, 642 (9^th Cir. 1282) ("Questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary.")

Having reviewed the record and the ALJ's conclusions, this court finds that the ALJ's decision is not free of legal error and supported by substantial evidence. Accordingly,

1. Plaintiff's Motion for Summary Judgment (Ct. Rec. 12) is GRANTED. The matter is remanded to the Commissioner of Social Security for further proceedings consistent with this decision and sentence four of 42 U.S.C. § 405(g).

2. Defendant's Motion for Summary Judgment (Ct. Rec. 16) is DENIED.

The District Court Executive is directed to file this Order, provide copies to counsel for Plaintiff and Defendant, enter judgment in favor of Plaintiff, and CLOSE this file.