Copley v. Astrue

Filing 21

ORDER, remanding this case to the Commissioner for further proceedings consistent with this order. Signed by Judge David G Campbell on 6/30/11. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lori A. Copley,
Plaintiff,

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No. CV 10-1410-PHX-DGC
ORDER

vs.
Michael Astrue, Commissioner of Social
Security Administration

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Defendant.

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Plaintiff was determined ineligible for Supplemental Security Income (“SSI”)

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benefits by a Social Security Administrative Law Judge (“ALJ”), and the decision

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became final agency action. Plaintiff argues that the ALJ erred at Step 2 of the sequential

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evaluation process and in the residual functional capacity assessment (“RFC”). Doc. 13.

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Defendant argues that the ALJ’s decision was proper and supported by substantial

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evidence. Doc. 14. The issues have been fully briefed (Docs. 13, 14, 20), and the parties

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do not request oral argument. For the reasons that follow, the Court will remand for

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further proceedings.

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The ALJ found that Plaintiff has severe fibromyalgia and determined the condition

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to be a severe impairment.

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determination, but challenges the ALJ’s finding that Plaintiff’s migraine headaches,

Doc. 12-3 at 11.1

Plaintiff takes no issue with this

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The Court’s citations to the record reflect the page numbers generated at the top of a
PDF document by the Court’s Electronic Case Filing system, not page numbers appearing on
original exhibits.

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hyperactive bladder, irritable bowel syndrome, and lumbar degenerative disc disease

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were non-severe impairments.2 Doc. 13 at 10:24-27.

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An applicant for benefits is deemed not disabled at Step 2 of the evaluation

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process if she is found not to have a severe impairment. 20 C.F.R. § 416.920(a)(4)(ii). In

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this case, Plaintiff passed Step 2 as a result of the ALJ’s finding that Plaintiff’s

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fibromyalgia was a severe impairment. Therefore, to the extent the ALJ found other

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impairments non-severe, but nonetheless considered them in the RFC assessment, the

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Court will review the challenged findings in the context of the RFC assessment. See 20

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C.F.R. § 416.920(e) (stating that an RFC assessment bears on whether an applicant can

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perform work activities); 20 C.F.R. § 416.945(a)(2) (requiring all impairments be used in

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an RFC assessment); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (noting that

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Social Security regulations define “severity” of an impairment as a function of its effects

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on applicant’s ability to perform work activities).

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The ALJ concluded that Plaintiff “has the residual functional capacity to perform

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the full range of light work as defined in 20 C.F.R. § 416.967(b), except that she is

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limited to occasional postural functions including stooping, kneeling, crouching, and

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crawling.”

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impairments “affect her ability to sustain work activities eight hours per day, five days

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per week,” failed properly to weight medical source opinion evidence, and failed properly

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to weigh Plaintiff’s testimony.3 Doc. 13 at 16-24. Defendant responds that Plaintiff’s

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past relevant work as a bookkeeper required walking for 0.5 hours, standing for 0.5

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hours, sitting for 1.0 hours, reaching for 1.0 hours, and “no climbing, stooping, kneeling,

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crouching, crawling, or handling/grabbing/grasping big objects.”

Doc. 12-3 at 12.

Plaintiff argues the ALJ failed to discuss how her

Doc. 14 at 31-32.

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Plaintiff does not appear to take issue with the ALJ’s determination that Plaintiff’s
history of Bell’s Palsy does not constitute a severe impairment (Doc. 12-3 at 11). Doc. 13 at 10
(excludes Bell’s Palsy finding).
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Plaintiff also argues that the testimony of the vocational consultant hired by the agency
is not reliable. Doc. 13 at 24. The Court need not reach this issue.
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Because the ALJ found that Plaintiff would be able to perform these activities despite all

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her impairments, and the finding is supported by substantial evidence, Defendants argues,

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the ALJ did not err. See id. at 33. Plaintiff replies in part that the ALJ “cherry-picked”

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evidence and that the record shows “none of the reported activities are done with the

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consistency or degree of sustained competitive employment.” Doc. 20 at 9.

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In conducting an RFC assessment, the Commissioner must consider the combined

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effects of an applicant’s medically-determinable impairments on the applicant’s ability to

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perform sustainable work.

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individual’s . . . impairments are of sufficient medical severity that such . . . impairments

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could be the basis of eligibility under this section, the Commissioner of Social Security

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shall consider the combined effect of all of the individual’s impairments without regard

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to whether any such impairment, if considered separately, would be of such severity.”

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(emphasis added)); see 20 C.F.R. §§ 404.1520(c), 416.920(c) (Commission to consider

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“combination

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(Commission to consider “all” impairments); see also Macri v. Chater, 93 F.3d 540, 545

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(9th Cir. 1996) (Commissioner must consider the combined effect of all impairments in

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determining whether the claimant is disabled) (citing Gregory v. Bowen, 844 F.2d 664,

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666 (9th Cir. 1988)); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (Commissioner

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“should have considered the combined effect of the claimant’s physical and mental

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impairments in determining [RFC]”); Hammock v. Bowen, 879 F.2d 498, 500 (9th Cir.

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1989) (error not to “consider the combined effect of all of [applicant’s] impairments on

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her ability to return to work”). Moreover, an applicant’s ability to perform sustainable

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work should be assessed against a standard work week in a realistic work setting. SSR

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96-8p, 1996 WL 374184, at *7 (July 2, 1996) (stating, in part, that “RFC is an assessment

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of an individual’s ability to do sustained work-related physical and mental activities in a

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work setting on a regular and continuing basis. A ‘regular and continuing basis’ means 8

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hours a day, for 5 days a week, or an equivalent work schedule.”); see also Fair v.

of

42 U.S.C. § 423(d)(2)(B) (“In determining whether an

impairments”);

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C.F.R.

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§§

404.1545(a)(2),

416.945(a)(2)

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Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (suggesting that an applicant’s ability to

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perform work tasks should be assessed in the context of “the more grueling environment

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of the workplace,” and that in some environments “it might be impossible to periodically

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rest or take medication”).

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The ALJ found Plaintiff’s medically-determinable impairments – fibromyalgia,

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migraines, lower back problems, stomach damage, and Bell’s Palsy – “could reasonably

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be expected to cause” the symptoms Plaintiff alleged. Doc. 12-3 at 12. The ALJ

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nonetheless concluded that Plaintiff’s “statements concerning the intensity, persistence

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and limiting effects of these symptoms are not credible to the extent they are inconsistent

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with the above residual functional capacity assessment.” Id. The ALJ held that Plaintiff

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“failed to provide sufficient evidence to support the alleged severity and duration of [her]

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symptoms and limitations pertaining to her alleged migraines, lumbar spine and stomach

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problems, and Bell’s Palsy.” Id. The ALJ also observed that “[t]he medical records fail

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to establish support for such impairments, as the claimant rarely complains about these

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impairments,” and “[t]he physicians do not address the impairments either.” Id. The

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ALJ noted medical findings from Plaintiff’s treating physician, Dr. Franklin Baroi,

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findings from State Agency physician Dr. Robert Hirsch, consulting psychologist Dr.

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Carlos Vega, and consulting physician Dr. Richard Palmer. Id. at 13-15. The ALJ also

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noted testimony by Plaintiff where she “persistently complains of intractable pain,” but

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the testimony was largely discounted as “not fully credible” due in part to lack of

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“objective findings to substantiate the severity of her complaints.”4 Id. at 16. For

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example, the ALJ opined that “although the claimant undoubtedly experiences some

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degree of pain, the pain has apparently not altered the use of her muscles and joints to the

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extent that [it] has resulted in diffuse muscle atrophy,” the latter being a “common side

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effect[] of prolonged and/or chronic pervasive pain” according to the ALJ. Id. at 16.

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The ALJ’s credibility determination appears aimed at Plaintiff’s conclusions about the
extent of her limitations, not at her lack of sincerity: the ALJ noted that “the claimant appeared to
be a sincere witness” (Doc. 12-3 at 16).
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The Court concludes the ALJ did not adequately compare Plaintiff’s residual

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functional capacity with the requirements of sustainable work during a standard work

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week in a realistic work setting. The ALJ’s analysis focused primarily on the medical

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evidence disputing the extent of Plaintiff’s symptoms, and stopped short of discussing

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how Plaintiff’s symptoms – to the extent they were assessed credible by the ALJ – match

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up to the type of sustainable work the ALJ deemed Plaintiff able to perform. The ALJ’s

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findings on this point were at best conclusory, asserting in part merely that “the claimant

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is able to perform [the work] as actually and generally performed.” The ALJ does not

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discuss the typical work environment in which Plaintiff might perform, the ability of

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Plaintiff to obtain requisite rest or employ pain-management techniques in that

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environment, Plaintiff’s ability to travel consistently to and from the work site five days

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per week, or Plaintiff’s ability to maintain sustainable employment in a realistic work

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setting in light of the totality of her impairments. Plaintiff’s pain level appeared to be the

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most pronounced symptom addressed by the ALJ with regard to work limitations, but

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even there the ALJ’s treatment of the pain aspect is somewhat ambiguous. The ALJ

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acknowledges, for example, that according to Dr. Vega “the claimant is likely to be

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suffering from a pain disorder that is associated with both psychological factors and

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fibromyalgia,” and that “claimant’s inability to obtain and maintain gainful employment

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is more likely impeded by physical factors than psychological ones.” Doc. 12-3 at 14.

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The ALJ also notes that “[t]he documentation basically indicates a worsening in the pain

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disorder described above.” Id. The ALJ does not appear to conclude what pain level the

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evidence shows Plaintiff as having, and how this pain level factors into Plaintiff’s ability

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to work as discussed above. The same holds true for the other non-pain symptoms

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reported by Plaintiff and acknowledged by the ALJ.

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For the reasons above, the Court will remand to the Commissioner for additional

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proceedings consistent with this order. The Commissioner shall consider the combined

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effects of Plaintiff’s impairments on Plaintiff’s ability to perform sustainable work during

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a standard work-week in a realistic work setting.
IT IS ORDERED that this case be remanded to the Commissioner for further
proceedings consistent with this order.
Dated this 30th day of June, 2011.

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