Prim v. Commissioner of Social Security

Filing 19

ORDER Regarding Plaintiff's Social Security Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 3/27/2013. Plaintiff's motion for summary judgment be DENIED. The Commissioner's cross-motion for summary judgment be GRANTED. The Clerk of Court enter judgment in favor of the Commissioner of Social Security, and against Plaintiff Sandra Prim. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SANDRA J. PRIM,

) 1: 11-cv-01830-BAM
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) ORDER REGARDING PLAINTIFF’S
) SOCIAL SECURITY COMPLAINT
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Plaintiff,
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v.
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CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.
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I.

INTRODUCTION

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Plaintiff Sandra J. Prim (“Plaintiff”) seeks judicial review of a final decision of the
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Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for
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disability insurance benefits pursuant to Title II of the Social Security Act. The parties consented
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to jurisdiction of the Magistrate Judge (Doc. 8, 9) and the matter is currently before the Court on
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the parties’ briefs and submitted without oral argument to Magistrate Judge Barbara A.
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McAuliffe.
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II.

BACKGROUND

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A.

Overview of Administrative Proceedings

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On October 5, 2009, Plaintiff filed an application for Disability Insurance Benefits
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pursuant to Title II of the Social Security Act, alleging she became disabled on July 12, 2004 due
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to neck, shoulder, arm, and hand pain, fibromyalgia, headaches, a sleep disorder, carpal tunnel,

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and nerve damage. (Administrative Record (“AR”), 59, 66, 131.) Plaintiff’s application was

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denied on initial review and again on reconsideration. (AR 59, 66, 73, 95.) Thereafter, Plaintiff

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requested a hearing before an Administrative Law Judge (the “ALJ”). On April 22, 2011,

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Plaintiff appeared with counsel and testified before the ALJ. (AR 28-56). In a decision dated

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May 6, 2011, the ALJ determined Plaintiff was not disabled within the meaning of the Social

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Security Act. (AR 16-22.) The ALJ’s decision became the final decision of the Commissioner

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when the Appeals Council denied Plaintiff’s request for review on August 10, 2011. (AR 5-7.)

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Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).

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B.

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Hearing Testimony
The ALJ held a hearing in Palmdale, California on April 22, 2011. (AR 28.) Plaintiff

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personally appeared and was assisted by attorney Brian Reed. (AR 28.) Vocational Expert (the

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“VE”) Randi Hetrick also testified.

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Plaintiff was born on March 12, 1968. (AR 151.) Currently, Plaintiff lives with her

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husband and daughter. (AR 44.) Plaintiff completed a twelfth grade education, however, has not

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received any subsequent education or vocational training. (AR 45-5.)

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At the April 2011 hearing, Plaintiff testified that in 2004, she was working at a grocery

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store unloading and shelving merchandise when she felt a “really bad pain.” (AR 35.) She said

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she had pain in her shoulders and neck and “couldn’t do anything [work-wise].” (AR 37.) She

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testified to being unable to do dishes, cook, make her bed, or push or pull because her pain was

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“so... debilitating.” (AR 38.) At that time, her treatment included medication, such as Darvocet,

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Ultram, and Naprosyn, and physical therapy. (AR 39.) Plaintiff further testified that, during the

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relevant period between the Summer of 2004 and Christmas of 2004, she could stand 10 minutes

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and sit for 5 minutes. (AR 41-42.) Plaintiff had surgery in 2006 to address these concerns,

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however, Plaintiff testified her condition had not improved as of the date of the hearing. (AR

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44.)

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Thereafter, the ALJ elicited the testimony of vocational expert Randi Hetrick. (AR
46-54.) The VE stated that Plaintiff’s past relevant work was classified as a stocker in a retail
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grocery store, which is “heavy” work. (AR 46-7.) The VE also stated Plaintiff worked as an

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order picker, which is classified as “medium” work. (AR 47.)

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The VE was asked to consider whether a thirty-six year old individual with a high school

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education and the following limitations could perform Plaintiff’s past relevant work: light

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exertion; sit/stand at will option; frequent, not repetitive handling and fingering; occasional

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overhead reach with the right upper extremity; occasional stoop, kneel, crouch; no crawling

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(“because the crawling typically requires some . . . hyper extension of the neck”); limited to

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simple and repetitive tasks; and solitary, not team related work. The VE testified such a

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hypothetical individual could not perform Plaintiff’s past relevant work. (AR 47-9.)

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The VE was then asked if such a hypothetical individual could perform other jobs in the

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local economy. The VE testified such an individual could perform other jobs in the local

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economy, including office helper (8,000 jobs) and x-ray inspector (2,500 jobs). (AR 51-52.)

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C.

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Medical History
The entire medical record was reviewed by the Court. (AR 200-664.) The medical

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evidence will be referenced below to the extent it is necessary to the Court’s decision.

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D.

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ALJ Findings
In reaching his decision that Plaintiff has not been under a disability within the meaning

of the Act, the ALJ made the following findings:
1.

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Plaintiff last met the insured status requirements of the Social Security Act on
December 31, 2004;

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Plaintiff has not engaged in substantial gainful activity during the period from her

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alleged onset date of July 12, 2004, through her date last insured of December 31,

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2004 (20 CFR 416.971 et seq.);

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3.

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Plaintiff has the following severe combination of impairments: degenerative disc
disease of the cervical spine with radiculopathy (20 CFR 416.920(c));

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Plaintiff does not have an impairment or combination of impairments that meets

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or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P,

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Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926);
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Plaintiff’s Residual Functional Capacity: Plaintiff has the residual functional

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capacity to lift and carry 20 pounds occasionally and 10 pounds frequently,

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stand/walk 4 hours in an 8-hour workday with the need to alternate sitting and

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standing at will, sit 4 hours in an 8-hour workday with the need to alternate sitting

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and standing at will, occasionally stooping, kneeling and crouching, no crawling,

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occasional overhead reaching with the non-dominant right upper extremity,

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frequent but not repetitive reaching at shoulder level with the right upper

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extremity, frequent but not repetitive handling and fingering with the bilateral

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upper extremities, and less than moderate impairment in attention and

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concentration due to pain resulting in limitation to simple and repetitive tasks with

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no contact with the public and must work in solitary and not in a team;

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Plaintiff is unable to perform any past relevant work (20 CFR 416.965);

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7.

Considering Plaintiffs’ age, education, work experience and residual functional

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capacity, there were jobs that existed in significant numbers in the national

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economy that Plaintiff could perform (20 CFR 404.1569 and 404.1569(a)).

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(AR 16-22.)

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III.
A.

DISCUSSION

Standard of Review

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Congress has provided a limited scope of judicial review of the Commissioner’s decision

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to deny benefits under the Act. In reviewing findings of fact with respect to such determinations,

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this Court must determine whether the decision of the Commissioner is supported by substantial

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evidence. 42 U.S.C. § 405 (g). Substantial evidence means “more than a mere scintilla,”

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Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v.

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Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at

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401. The record as a whole must be considered, weighing both the evidence that supports and

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the evidence that detracts from the Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993,

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995 (9th Cir. 1985). This Court must uphold the Commissioner’s determination that the claimant
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is not disabled if the Secretary applied the proper legal standards, and if the Commissioner’s

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findings are supported by substantial evidence. See Sanchez v. Sec’y of Health and Human Serv.,

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812 F.2d 509, 510 (9th Cir. 1987).

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In order to qualify for benefits, a claimant must establish that she is unable to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which

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has lasted or can be expected to last for a continuous period of not less than twelve months. 42

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U.S.C. § 1382c (a)(3)(A). A claimant must show that she has a physical or mental impairment of

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such severity that she is not only unable to do her previous work, but cannot, considering her age,

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education, and work experience, engage in any other kind of substantial gainful work which

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exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989).

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The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th

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Cir. 1990).

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B.

The ALJ’s RFC Finding Was Based on Substantial Evidence

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At step five in the five-step sequential analysis mandated by the Social Security

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Regulations1, the ALJ concluded that Plaintiff’s residual functional capacity (“RFC”) permitted

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her to work jobs existing in significant numbers in the national economy. (AR 21.) Plaintiff

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contends the ALJ’s RFC assessment is not supported by substantial evidence because the ALJ

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failed to include motion limitations relating to Plaintiff’s neck. Specifically, Plaintiff argues that

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“[t]he evidence strongly suggests that Ms. Prim cannot engage in frequent movement of the head

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and neck whether up, down, or side to side, and never to extremes in any plane.” Plaintiff also

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suggests that “[t]he ALJ’s failure to include the [neck] limitations in the residual functional

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capacity assessment constitutes a failure to fully develop the record.”

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A claimant's RFC is what he is capable of doing despite his physical and mental

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limitations. 20 C.F.R. § 404.1545(a)(1); Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001);

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The five steps are as follows: (1) whether the claimant is engaged in substantial gainful activity; (2)
whether the claimant's impairment is “severe”; (3) whether the impairment meets or equals one of the listings in 20
C.F.R. § 404, Subpart P, Appendix 1; (4) whether the claimant is able to return to past relevant work; and (5)
whether the claimant can do other types of work. 20 C.F.R. § 404.1520(a)(4). These steps are cumulative; an ALJ
need not consider further steps after finding that a step does not favor the claimant.

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Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). “RFC is an

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assessment of an individual's ability to do sustained work-related physical and mental activities

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in a work setting on a regular and continuing basis.” SSR 96–8p, 1996 WL 374184 (S.S.A. July

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2, 1996). An RFC assessment is ultimately an administrative finding reserved to the

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Commissioner, based on all of the relevant evidence, including the diagnoses, treatment,

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observations, and opinions of medical sources, as well as observations by family members and

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the claimant's own subjective symptoms. 20 C.F.R. § 404.1545(a)(3). An RFC that does not

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account for all of a claimant's limitations is defective. Valentine, 574 F.3d at 690.

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In formulating a claimant's RFC, an ALJ is not required to include limitations that are not

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supported by substantial evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1164–65 (9th Cir. 2001)

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(“No evidence was submitted to the ALJ that Mr. Osenbrock suffered from sleep apnea, diabetes,

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organic brain disorder, or hepatitis . . . Because Mr. Osenbrock did not present any evidence that

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he suffers from sleep apnea, diabetes, organic brain disorder, or hepatitis in support of his

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disability claim, the ALJ did not err in failing to include these alleged impairments in the

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hypothetical question posed to the VE.”) “Conversely, an ALJ is not free to disregard properly

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supported limitations.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). An ALJ

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may omit limitations arising out of a claimant's subjective complaints only if the subjective

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complaints have been specifically discredited. Compare, Copeland v. Bowen, 861 F.2d 536, 541

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(9th Cir.1988) (RFC excluding subjective pain limitations was supported by substantial evidence

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where ALJ specifically discredited claimant's pain testimony) with Lingenfelter, 504 F.3d at

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1040–41 (RFC excluding subjective pain limitations was not supported by substantial evidence

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where ALJ did not provide clear and convincing reasons for discrediting claimant's testimony).

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The ALJ’s RFC finding is supported by substantial evidence. Plaintiff’s appeal

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challenges the ALJ’s findings in one respect only: the ALJ should have included a single

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additional limitation in his RFC finding. Plaintiff, however, does not suggest this error was

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predicated on a separate error in the Record, e.g., improper rejection of medical opinion

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testimony, or an improper rejection of Plaintiff’s own testimony. Presumably, this is because

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there is no evidence in the Record to support this limitation – not Plaintiff’s own testimony, nor
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the opinion or note of any medical professional (treating or otherwise). On the contrary, Plaintiff

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asserts the ALJ should have adopted limitations that can not be found anywhere in the Record.

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Yet, Plaintiff claims that this limitation is the only inference “flow[ing] from the record.”

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At the April 2011 hearing, Plaintiff asserted that during the relevant period she “couldn’t

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do anything”– that her pain was so “debilitating” that she could not wash dishes, make her bed,

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or even push or pull. (AR 37-38.) The ALJ, however, found that such allegations were out of

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proportion with the objective and clinical findings at the time. (AR 20.) Such evidence

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included, the ALJ noted, testing of the right shoulder that was “unremarkable” and “normal” and

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testing of the neck showing moderate and severe narrowing at C5-6. (AR 19-20, 200, 228-29.)

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The ALJ also observed that in September 2004 pain specialist Dr. Lipel found full motor strength

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in the upper extremities; thus, the ALJ remarked there was no evidence of muscle atrophy from

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disuse that would be compatible with the level of inactivity claimed. (AR 20, 246.)

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An ALJ is not compelled to believe every allegation of disability. If that were the case,

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“disability benefits would be available for the asking.” Fair v. Bowen, 885 F.2d 597, 603 (9th

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Cir. 1989). Rather, an ALJ may use ordinary techniques for credibility evaluation, Light v. Soc.

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Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997), and make inferences “logically flowing from the

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evidence,” Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996). If an ALJ’s credibility finding is

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supported by substantial evidence, the court cannot second-guess the ALJ. Tommasetti v. Astrue,

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533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ logically inferred that Plaintiff’s claimed

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extraordinary limitation – of being unable to do anything at all – was not supported by the

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objective and clinical medical evidence.

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Moreover, Plaintiff incorrectly asserts the ALJ failed to include limitations relating to

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Plaintiff’s neck movement. In his hypothetical to the VE, the ALJ included the limitation of “no

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crawling” specifically “because the crawling typically requires some . . . hyper extension of the

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neck.” (AR 47-8.) The ALJ also included a “no crawling” limitation in his RFC finding. (AR

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18.) Thus, the ALJ did, in fact, limit Plaintiff from having to engage in hyper extension of the

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neck both in his RFC finding and his questions to the VE. Regardless, because there is not a

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single reference in the Record to Plaintiff’s neck limitations, the ALJ only needed to rationally
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interpret the evidence in the Record in his RFC finding. The ALJ was not required to address a

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specific limitation that was neither recommended by any medical professional, nor claimed by

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Plaintiff’s own testimony.

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At issue is not whether Plaintiff can come up with a different, rational interpretation of

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the evidence, but rather, whether the ALJ’s interpretation of the evidence is rational and free of

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reversible legal error. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (explaining that the

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ALJ’s interpretation of the evidence will be upheld so it is rational, even if “the evidence is

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susceptible to more than one rational interpretation”). The ALJ’s interpretation, here, is rational

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and based on substantial evidence in the Record.

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Finally, the Court is not persuaded that the ALJ’s refusal to include the neck limitations

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sought by Plaintiff constitutes a failure to fully develop the Record. The ALJ's duty to develop

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the record further “is triggered only when there is ambiguous evidence or when the record is

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inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453,

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459-60 (9th Cir. 2001) (citation omitted); see also, 20 C.F.R. § 404.1520b (stating that the

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agency will seek additional information only when the information received from a medical

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source is inadequate and prevents the agency from making a decision regarding disability).

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Plaintiff fails to demonstrate how the evidence is ambiguous or inadequate, points to no

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evidence absent from the record, and fails to identify what specific additional evidence is

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required. On the contrary, Plaintiff suggests the Record is so clear that the proposed neck

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limitations are the only inference “flow[ing] from the record.” Thus, Plaintiff’s “duty to develop

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the Record” argument rehashes her disagreement with the ALJ’s RFC finding. Plaintiff’s

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disagreement with the ALJ’s findings, however, by itself, is insufficient.

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IV.

CONCLUSION

Based on the foregoing, the Court finds the ALJ’s decision is supported by substantial

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evidence in the record as a whole and based upon proper legal standards. Accordingly, this Court

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ORDERS that:

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Plaintiff's motion for summary judgment be DENIED;

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The Commissioner's cross-motion for summary judgment be GRANTED;
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3.

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The Clerk of Court enter judgment in favor of the Commissioner of Social
Security, and against Plaintiff Sandra Prim.

IT IS SO ORDERED.
Dated:
10c20k

March 27, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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