Pamela Gaile Grimm v. Carolyn W Colvin

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PAMELA GAILE GRIMM,
Plaintiff,

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vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. ED CV 14-00917 RZ
MEMORANDUM OPINION
AND ORDER

Plaintiff Pamela Gaile Grimm seeks review of the Social Security
Commissioner’s decision denying her application for disability benefits.

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The Administrative Law Judge found that Plaintiff had severe impairments

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of a degenerative disc disease of the spine and right rotator cuff tendinitis, as well as non-

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severe impairments of an overactive bladder, dysphagia and fibromyalgia. [AR 12] The

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Administrative Law Judge also found that Plaintiff could perform work at a medium level

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of exertion [AR 14], which allowed her to perform her past relevant work as a salesperson,

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machine packager and home attendant. [AR 18] Hence, the Administrative Law Judge

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concluded, Plaintiff was not under a disability. [Id.] The Court must uphold this decision

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if it is backed by substantial evidence and not tainted by legal error. Drouin v. Sullivan,

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966 1255, 1257 (9th Cir. 1992).

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Plaintiff first challenges the determination that her fibromyalgia was a non-

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severe impairment. The regulations do not define a “severe” impairment. Instead, they

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state what a non-severe impairment is: one that does not significantly limit physical or

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mental ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921. The basic

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work activities are “the abilities and aptitudes necessary to do most jobs,” including various

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physical and mental activities. [Id.] In its internal procedures, the Social Security

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Administration assesses an impairment as “non-severe” if it has no more than a minimal

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effect on the individual’s ability to do basic work functions. SSR 85-28. This minimalist

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treatment has received the Courts’ imprimatur. Yuckert v. Bowen, 841 F.2d 303, 306 (9th

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Cir. 1988); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Thus, the requirement

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that a claimant have a severe impairment has been transmogrified into a requirement that

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the claimant have an impairment that is not very severe at all — it simply must have more

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than a minimal effect on his or her ability to do basic work functions.

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The question of severity therefore is a question of functionability; a person can

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have an impairment that does not much affect the ability to function, in which case the

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impairment is not severe. Almost all of Plaintiff’s argument is devoted to a different

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subject, however — whether Plaintiff had fibromyalgia at all. The Administrative Law

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Judge did raise this issue in a footnote [AR 12 n.1], but he did not rely on it, finding instead

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that Plaintiff had fibromyalgia, but that it was non-severe. Neither this Court nor the

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Administrative Law Judge nor Plaintiff is a doctor, and none is qualified to determine

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whether Plaintiff met the criteria for having fibromyalgia. See Day v. Weinberger, 522

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F.2d 1154,1156 (9th Cir. 1975); Manso-Pizarro v. Secretary of Health and Human

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Services, 76 F.3d 15, 17 (1st Cir. 1996) (“With a few exceptions (not relevant here), an

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ALJ, as a lay person, is not qualified to interpret raw data in a medical record.”). What

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Plaintiff would have the ability to challenge, however, is the issue of whether the

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Administrative Law Judge appropriately concluded that Plaintiff’s fibromyalgia burdened

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her functionability more than minimally.

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As noted, Plaintiff does not develop this point. She does not point to any

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evidence in the record where a doctor opined that her fibromyalgia imposed severe

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limitations on her functionability. She asserts that she was diagnosed with fibromyalgia

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in 2004, yet continued working until 2009, and her fibromyalgia was not the reason that

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she stopped working. Under the circumstances, the Administrative Law Judge was within

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his authority in concluding that fibromyalgia was not a severe impairment.

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Plaintiff’s second argument is that the Administrative Law Judge wrongly

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discounted her assertions as to pain. In this Court, again — unlike in the administrative

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hearing — Plaintiff focuses on her fibromyalgia. Fibromyalgia is an elusive disease, and

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objective evidence is hard to come by. See Benecke v. Barnhart, 379 F.3d 587, 589 (9th

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Cir. 2004). But this does not mean that any plaintiff with fibromyalgia cannot work, or

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must be believed completely. Plaintiff here had a variety of ailments; the main ones

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identified by the Administrative Law Judge were a degenerative disc disease of the

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cervical spine and right rotator cuff tendinitis. It was those impairments, in combination

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with the non-severe impairments (which included fibromyalgia), which the Administrative

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Law Judge evaluated, and Plaintiff’s testimony as to her level of pain had to be related to

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the impairments. Thus, in evaluating Plaintiff’s credibility, the Administrative Law Judge

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was assessing her believability as to the impact of all her impairments, in combination.

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Although it cannot be an ending point in a credibility analysis, the objective

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medical evidence certainly can be a starting point. Rollins v. Massanari, 261 F. 3d 853,

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857 (9th Cir. 2001). Here, the Administrative Law Judge’s determination that the objective

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medical evidence belied the degree of Plaintiff’s pain was a factor that he could at least

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begin with. If he had stopped there, he would have run afoul of cases like Bunnell v.

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Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc), but he was entitled to consider the

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evidence he detailed as one factor indicating that Plaintiff’s claim that she could not work

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was overstated.

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He also noted that Plaintiff attempted to exaggerate her symptoms [AR 15],

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and this was consistent with statements in the record that Plaintiff was a poor and vague
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historian, and that, although she makes unusual comments such as she could not move,

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speak, or eat, visual observations belied the comments. [AR 599-600]

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The Administrative Law Judge also noted that Plaintiff’s daily activities were

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inconsistent with her statements that she could do virtually nothing. [AR 15] It is true, of

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course, that a claimant need not be totally unable to function in order to qualify for

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disability benefits, but this was not the point the Administrative Law Judge was addressing.

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Rather, he was addressing the inconsistency between Plaintiff’s assertion that she could do

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virtually nothing, and the record that showed that she could do considerably more than

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nothing. Such an inconsistency is a valid basis for finding a claimant less than wholly

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credible. Bunnell, 947 F.2d at 346; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).

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The Administrative Law Judge also addressed the nature of Plaintiff’s care in

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comparison to Plaintiff’s complaints. Conservative care in the face of supposed inability

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to function makes the claim less credible. Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir.

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1995). Although Plaintiff asserts in this Court that her medication was increased, she

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testified at the hearing (at which she was represented by counsel) that her medication had

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not been changed in the last year or two. [AR 9] The Administrative Law Judge also

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referenced the fact that, even though she had a back problem, surgery had not been

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recommended for it. [AR 15]

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These were valid reasons for the Administrative Law Judge to disbelieve

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Plaintiff. A different person might interpret the evidence differently, but the Court must

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defer to the interpretation placed on it by the Administrative Law Judge. Rollins, supra.

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In accordance with the foregoing, the decision of the Commissioner is

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affirmed.
DATED: February 17, 2015

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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