Wolfinbarger v. Commissioner of Social Security

Filing 24

MEMORANDUM, OPINION and ORDER signed by Magistrate Judge Craig M. Kellison on 2/24/2014 ORDERING that Plaintiff's 17 motion for summary judgment is GRANTED. Defendant's 18 cross-motion for summary judgment is DENIED. This matter is REMANDED for further proceedings consistent with this order. The Clerk of the Court is directed to enter judgment and close this case. CASE CLOSED. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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COZETTE A. WOLFINBARGER,

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Plaintiff,

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No. 2:12-CV-0174-CMK

vs.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.
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Plaintiff, who is proceeding with retained counsel, brings this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

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Pursuant to the written consent of all parties, this case is before the undersigned as the presiding

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judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending

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before the court are plaintiff’s motion for summary judgment (Doc. 17) and defendant’s cross-

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motion for summary judgment (Doc. 19). For the reasons discussed below, the court will grant

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plaintiff’s motion for summary judgment for remand and deny the Commissioner’s cross-motion

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for summary judgment.

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I. PROCEDURAL HISTORY1

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Plaintiff applied for social security benefits on October 26, 2007, alleging an onset

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of disability on June 1, 2002, due to disabilities including fibromyalgia, arthritis in back,

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reconstruction of left ureter, irritated bowel syndrome, cluster headaches, chronic pain, chronic

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fatigue, ulcer, disorders of the back (discogenic & degenerative) and other rheumatic heart

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disease (Certified administrative record (“CAR”) 81-84, 142-45, 152-54, 161-72). Plaintiff’s

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claim was denied initially and upon reconsideration. Plaintiff requested an administrative

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hearing, which was held on February 24, 2010, before Administrative Law Judge (“ALJ”)

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Sharilyn Hopson. In an April 9, 2010, decision, the ALJ concluded that plaintiff is not disabled2

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Because the parties are familiar with the factual background of this case, including
plaintiff’s medical history, the undersigned does not exhaustively relate those facts here. The
facts related to plaintiff’s impairments and medical history will be addressed insofar as they are
relevant to the issues presented by the parties’ respective motions.
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Disability Insurance Benefits are paid to disabled persons who have contributed to
the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income (“SSI”) is
paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Under both provisions,
disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to
“a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) &
1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The
following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed
to step two.
Step two: Does the claimant have a “severe” impairment?
If so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step
five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.
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based on the following findings:

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1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2007.

2.

The claimant has not engaged in substantial gainful activity since
June 1, 2002, the alleged onset date (20 CFR 404.1571 et seq. and
416.971 et seq.).

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The claimant has the following severe impairments: congenital
adynamic left ureter with chronic left pyelonephritis/left kidney
atrophy and stage 1 chronic kidney disease; fibromyalgia
syndrome; and obesity (20 CFR 404.1520(c) and 416.920(c)).

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The claimant does not have an impairment or combination of
impairments that meets or medically equals 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 light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she can stand and/or walk six hours in an eighthour day with normal breaks such as every two hours; she can sit
six hours in an eight-hour day with normal breaks such as every
two hours, with standing and stretching breaks every 30 minutes,
estimated to last one to three minutes at a time; she can lift and/or
carry 10 pounds frequently and 20 pounds occasionally; she can
occasionally stoop and bend; she can climb stairs, but not climb
ladders; she cannot work at heights or balance; she can perform
occasional neck motion, but should avoid extremes of motion; her
head should be held in a comfortable position most of the time; she
can maintain a fixed head position for 15 to 30 minutes at a time
occasionally; she should not operate motorized vehicles or work
around unprotected machinery; and she should work in an airconditioned environment.

6.

The claimant is capable of performing past relevant work as a
teacher’s aide. 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

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.

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Social Security Act, from June 1, 2002, through the date of this
decision (20 CFR 404.1520(f) and 416.920(f)).

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(CAR 30-36). After the Appeals Council declined review on October 17, 2011, this appeal
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followed.
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II. STANDARD OF REVIEW
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The court reviews the Commissioner’s final decision to determine whether it is:
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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a
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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is
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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521
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(9th Cir. 1996). It is “such evidence as a reasonable mind might accept as adequate to support a
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conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including
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both the evidence that supports and detracts from the Commissioner’s conclusion, must be
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considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v.
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Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s
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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.
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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative
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findings, or if there is conflicting evidence supporting a particular finding, the finding of the
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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
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Therefore, where the evidence is susceptible to more than one rational interpretation, one of
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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.
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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal
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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th
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Cir. 1988).
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III. DISCUSSION

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Plaintiff argues the ALJ erred in three ways: (1) the ALJ’s credibility

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determination was in error; (2) the ALJ’s residual functional capacity (RFC) analysis was

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improper; and (3) the ALJ’s Step 4 determination was erroneous.

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A.

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Plaintiff first argues that the ALJ’s credibility determination was in error. She

CREDIBILITY

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argues the ALJ failed to provide specific, clear and convincing reasons for discrediting her

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subjective limitations, and improperly relied solely on the objective medical evidence.

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The Commissioner determines whether a disability applicant is credible, and the

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court defers to the Commissioner’s discretion if the Commissioner used the proper process and

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provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit

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credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903

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F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d

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821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible

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and what evidence undermines the testimony. See id. Moreover, unless there is affirmative

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evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not

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credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d

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1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),

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and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

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If there is objective medical evidence of an underlying impairment, the

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Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely

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because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d

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341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

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The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
be a reasonable inference, not a medically proven phenomenon.

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80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799

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F.2d 1403 (9th Cir. 1986)).

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The Commissioner may, however, consider the nature of the symptoms alleged,

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including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,

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947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the

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claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent

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testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a

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prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5)

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physician and third-party testimony about the nature, severity, and effect of symptoms. See

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Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the

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claimant cooperated during physical examinations or provided conflicting statements concerning

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drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the

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claimant testifies as to symptoms greater than would normally be produced by a given

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impairment, the ALJ may disbelieve that testimony provided specific findings are made. See

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Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

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As to plaintiff’s credibility, the ALJ stated:

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After careful consideration of the evidence, the [ALJ] finds that the
claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity
assessment.

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[CAR 34].

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The ALJ then reviewed plaintiff’s medical evidence related to her kidney

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problems, fibromyalgia and back issues. She then summarized the medical opinions in the

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record. Thereafter, she determined the residual functional capacity to be supported by the

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evidence as a whole, but found:

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[a]lthough the claimant’s subjective complaints are not entirely
supported by the objective medical evidence, the [ALJ] considered
those complaints in the above residual functional capacity
assessment. Despite reporting mental limitations, there is no
evidence of any mental impairments to support those limitations;
they are secondary to her pain complaints. No further limitations
or restrictions are warranted.

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[CAR 35].
Plaintiff argues the ALJ failed to provide sufficient reasons for determining she

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was not entirely credible. She argues that the ALJ relied solely on the objective medical

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evidence, which is insufficient, failed to provide any other reason in support of the credibility

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determination, and failed to discuss any of the credibility factors.

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Defendant contends that the ALJ did not fully discredit plaintiff, but rather

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partially credited plaintiff’s allegations and took them into account in the RFC accordingly. In

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addition, the ALJ supported her determination based on plaintiff’s routine course of treatment

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and that her medical records and treatment were largely consistent with Dr. Landua’s assessment.

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Plaintiff counters that the reasons given by the defendant are not articulated by the ALJ, and are

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not supported by the ALJ’s decision but by citations to the record.

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The undersigned finds plaintiff’s arguments compelling. While her arguments are

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not fully developed or articulated for the court, the undersigned does find the ALJ failed to

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support her credibility determination. Originally stating that plaintiff’s subjective complaints are

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not entirely credible, the ALJ then states she has considered those complaints in determining the

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RFC. However, the ALJ fails to articulate what testimony was not credible and what evidence

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undermined that testimony. Reviewing the record, it would appear that the ALJ credited

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plaintiff’s testimony as to her need to change positions often, and not being able to sit or stand
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for long periods of time. However, plaintiff also testified to a need to lie down or nap often,

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having on average three bad days a week wherein she is unable to do much, and has side effects

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from medication which makes her tired. None of these limitations were specifically addressed by

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the ALJ, and therefore no reasons given as to why plaintiff’s assertion of these limitations were

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not credible.

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As stated above, general findings are insufficient. The ALJ is required to specify

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what testimony is not credible, and what evidence undermines that testimony. Here, the ALJ

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erroneously failed to do so.

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B. RESIDUAL FUNCTIONAL CAPACITY

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Next plaintiff argues the ALJ’s RFC analysis was improper as she failed to
explain why she was crediting the medical opinions.

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The undersigned finds this conclusory argument inadequate. Plaintiff fails to

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articulate how the ALJ erred in accepting the uncontroverted medical opinions. The ALJ did not

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indicate there were conflicting medical opinions nor that she was rejecting a medical opinion.

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Similarly, plaintiff does not point to any conflicting medical opinion or evidence which would

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give rise to the ALJ’s need to resolve the conflict.

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Accordingly, the undersigned finds no error in the ALJ’s acceptance of the
medical opinions on which the RFC was based.

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C.

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Finally, plaintiff contends the ALJ erred in her determination that she was able to

VOCATIONAL EXPERT

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perform her past relevant work. As the court understands this argument, it relates to the

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vocational expert’s (VE) testimony that plaintiff could perform the job of teacher’s aide based on

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the limitations the ALJ found. Defendant interprets this argument as a conflict between the VE’s

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testimony and the Dictionary of Occupational Titles (DOT).

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At step four of the sequential evaluation process, the burden is on the claimant to

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prove s/he can no longer perform any past relevant work. See Pinto v. Massanari, 249 F.3d 840,

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844 (9th Cir.2001). However, the ALJ still has a duty to make the requisite factual findings to

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support the conclusion regarding plaintiff’s ability to perform any past relevant work. See id.

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The ALJ also has an affirmative responsibility to inquire whether a conflict exists between the

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testimony of a vocational expert and the DOT. See SSR 00–4p, 2000 WL 1898704, at *4;

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Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir.2007).

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Here, the ALJ called a VE to testify at plaintiff’s administrative hearing. The ALJ

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directed the VE to testify according to the Dictionary of Occupational Titles or explain why he

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was not so testifying and to state what his testimony was based on (CAR 76-77). The ALJ then

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set forth the hypothetical which included the limitations the ALJ found appropriate for plaintiff,

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to which the VE testified a person with those limitations could perform plaintiff’s past relevant

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work as a teacher’s aide. Based on the VE’s testimony, the ALJ found plaintiff was capable of

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performing her past relevant work.

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Plaintiff argues there is a discrepancy between the DOT and her limitations

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regarding her neck movements. However, the DOT expresses no clear limitations regarding the

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neck movement expected of a teacher’s aide ( DOT 099.324-010, 1991 WL 646952). While the

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ALJ did not ask the VE specifically if his testimony conflicted with the DOT, she did request the

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VE testify in accordance with the DOT or explain any conflict. Based on the above, the

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undersigned finds plaintiff fails to establish that the VE’s testimony and the ALJ’s subsequent

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findings deviate from the DOT.

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IV. CONCLUSION

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For the foregoing reasons, this matter will be remanded under sentence four of 42

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U.S.C. § 405(g) for further development of the record and/or further findings addressing the

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deficiencies noted above.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for summary judgment (Doc. 17) is granted;

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2.

Defendant’s cross-motion for summary judgment (Doc. 18) is denied;

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This matter is remanded for further proceedings consistent with this order;

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The Clerk of the Court is directed to enter judgment and close this case.

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and

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DATED: February 24, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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