Woodward v. Commissioner of Social Security

Filing 15

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Craig M. Kellison on 10/31/14 ORDERING Plaintiff's motion for summary judgment 12 is denied; Defendant's cross-motion for summary judgment 13 is granted; and The Clerk of the Court is directed to enter judgment and close this file. CASE CLOSED (Becknal, R)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SUSAN ANNE WOODWARD,
Plaintiff,

12
vs.

13
14

No. 2:14-CV-0811-CMK

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,

15
Defendant.
16
/
17
Plaintiff, who is proceeding with retained counsel, brings this action under

18
19

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

20

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

21

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

22

before the court are plaintiff’s motion for summary judgment (Doc. 12) and defendant’s cross-

23

motion for summary judgment (Doc. 13).

24

///

25

///

26

///
1

1

I. PROCEDURAL HISTORY

2

Plaintiff applied for social security benefits on September 18, 2009. In the

3

application, plaintiff claims that disability began on August 1, 2006. Plaintiff’s claim was

4

initially denied. Following denial of reconsideration, plaintiff requested an administrative

5

hearing, which was held on June 13, 2012, before Administrative Law Judge (“ALJ”) L. Kalei

6

Fong. In a July 20, 2012, decision, the ALJ concluded that plaintiff is not disabled based on the

7

following relevant findings:

8

1.

The claimant has the following severe impairment(s): thoracic outlet
syndrome; right carpal tunnel syndrome; Hepatitis C with Stage II fibrosis;
attention deficit hyperactivity disorder; depressive disorder; anxiety
disorder; and alcohol dependence and abuse in partial remission;

2.

The claimant does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in the regulations;

3.

The claimant has the following residual functional capacity: she can
perform light work except: she can frequently balance, bend, crouch,
crawl, kneel, stoop, and climb ramps and stairs; she can only occasionally
climb ladders, ropes, and scaffolds; she must avoid constant/abrupt
movements of the neck; she can only occasionally overhead reach with the
left arm; she can frequently handle and finger with the right arm/hand; she
must avoid concentrated exposure to fumes, odors, dust, gases, poor
ventilation, etc., and hazards; she can sustain simple repetitive tasks; she
can work in two-hour increments in an eight-hour day; she can work in a
non-public environment with occasional public contact;

4.

Considering the claimant’s age, education, work experience, residual
functional capacity, and the Medical-Vocational Guidelines, there are jobs
that exist in significant numbers in the national economy that the claimant
can perform.

9
10
11
12
13
14
15
16
17
18
19
20

After the Appeals Council declined review on February 3, 2014, this appeal followed.

21
22

II. STANDARD OF REVIEW

23

The court reviews the Commissioner’s final decision to determine whether it is:

24

(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

25

whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

26

more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521
2

1

(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to

2

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

3

including both the evidence that supports and detracts from the Commissioner’s conclusion, must

4

be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones

5

v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

6

decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

7

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

8

findings, or if there is conflicting evidence supporting a particular finding, the finding of the

9

Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

10

Therefore, where the evidence is susceptible to more than one rational interpretation, one of

11

which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

12

Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

13

standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

14

Cir. 1988).

15
16

III. DISCUSSION
Plaintiff argues: “[T]he ALJ’s finding that Ms. Woodward was limited to frequent

17
18

handling and fingering with the right hand, occasional overhead reaching with the left arm,

19

occasional public contact in a non-public environment, and no abrupt or constant neck

20

movements precludes reliance on the Grids at Step 5 of the sequential analysis.”1 Specifically,

21

plaintiff contends that the ALJ erred in relying on Medical-Vocational Rules 202.21 and 202.14.

22

///

23

///

24

///

25
1

26

Notably, plaintiff raises no argument concerning the ALJ’s evaluation of the
medical opinion evidence or adverse credibility finding.
3

1

The Medical-Vocational Guidelines (“Grids”) provide a uniform conclusion about

2

disability for various combinations of age, education, previous work experience, and residual

3

functional capacity. The Grids allow the Commissioner to streamline the administrative process

4

and encourage uniform treatment of claims based on the number of jobs in the national economy

5

for any given category of residual functioning capacity. See Heckler v. Campbell, 461 U.S. 458,

6

460-62 (1983) (discussing creation and purpose of the Grids).

7

The Commissioner may apply the Grids in lieu of taking the testimony of a

8

vocational expert only when the Grids accurately and completely describe the claimant’s abilities

9

and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v.

10

Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the

11

Grids if a claimant suffers from non-exertional limitations because the Grids are based on

12

exertional strength factors only.2 See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b).

13

“If a claimant has an impairment that limits his or her ability to work without directly affecting

14

his or her strength, the claimant is said to have non-exertional . . . limitations that are not covered

15

by the Grids.” Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404,

16

Subpart P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids

17
18
19
20
21
22
23
24
25
26

2

Exertional capabilities are the primary strength activities of sitting, standing,
walking, lifting, carrying, pushing, or pulling and are generally defined in terms of ability to
perform sedentary, light, medium, heavy, or very heavy work. See 20 C.F.R., Part 404, Subpart
P, Appendix 2, § 200.00(a). “Sedentary work” involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small tools. See 20
C.F.R. §§ 404.1567(a) and 416.967(a). “Light work” involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10 pounds. See 20 C.F.R. §§
404.1567(b) and 416.967(b). “Medium work” involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. See 20 C.F.R. §§
404.1567(c) and 416.967(c). “Heavy work” involves lifting no more than 100 pounds at a time
with frequent lifting or carrying of objects weighing up to 50 pounds. See 20 C.F.R. §§
404.1567(d) and 416.967(d). “Very heavy work” involves lifting objects weighing more than
100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more.
See 20 C.F.R. §§ 404.1567(e) and 416.967(e).
Non-exertional activities include mental, sensory, postural, manipulative, and
environmental matters which do not directly affect the primary strength activities. See 20 C.F.R.,
Part 404, Subpart P, Appendix 2, § 200.00(e).
4

1

even when a claimant has combined exertional and non-exertional limitations, if non-exertional

2

limitations do not impact the claimant’s exertional capabilities. See Bates v. Sullivan, 894 F.2d

3

1059, 1063 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988).

4

In cases where the Grids are not fully applicable, the ALJ may meet his burden

5

under step five of the sequential analysis by propounding to a vocational expert hypothetical

6

questions based on medical assumptions, supported by substantial evidence, that reflect all the

7

plaintiff’s limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically,

8

where the Grids are inapplicable because plaintiff has sufficient non-exertional limitations, the

9

ALJ is required to obtain vocational expert testimony. See Burkhart v. Bowen, 587 F.2d 1335,

10

1341 (9th Cir. 1988).
Citing Social Security Rulings 83-10, 83-12, 83-14, 83-15, and 96-8p, the ALJ

11
12

concluded that plaintiff’s non-exertional limitations have “little or no effect on the occupational

13

base of unskilled light work.” According to plaintiff, the ALJ’s own findings – that plaintiff can

14

frequently handle and finger with the right hand, occasionally reach overhead with the left arm,

15

occasionally have public contact in a non-public environment, and never engage in abrupt or

16

constant neck movements – constitute non-exertional limitations precluding application of the

17

Grids. The issue, then, is whether any of these limitations impact the claimant’s capability to

18

perform the exertional requirements of light work. If so, then the ALJ erred in applying the

19

Grids.

20

Physical Impairments

21

As to plaintiff’s ability to reach overhead with the left arm, the ALJ summarized

22
23
24
25
26

the record as follows:
The claimant is seen multiple times in treatment with primary care
physician Dr. Martin Kuersten (Exhibit 1F). She sees Dr. Kuersten five
times in 2005, three times in 2006, and once in May 2007. Once she
complains of left shoulder pain, with physical examination showing full
range of motion of the shoulder, end point tenderness with elevation above
the shoulder, mild tenderness with Hawkins, and some tenderness to
palpitation (Exhibit 1F/7). This is diagnosed as left shoulder bursitis v.
5

1
2

tendonitis, doubt rotator impingement in September 2005, for which an
injection is given. . . .
The ALJ also commented on records from Hilltop Medical Clinic:

3

The claimant is seen by treating sources at Hilltop Medical Clinic for a
variety of temporary ailments from November 2006 to August 2009
(Exhibit 4F). She is seen for left elbow pain once, in November 2006,
noting she had it for months, using Advil, and a brace to relieve her
symptoms, but the dog chewed the brace (Exhibit 4F/1). Physical
examination findings of the elbow are tenderness, painful range of motion;
she is diagnosed with tendonitis, encouraged to get a new brace and
Ibuprofen.

4
5
6
7
8
9
10

As to plaintiff’s ability to handle and finger with the right hand, the ALJ first
noted: “. . .Carpal tunnel syndrome is demonstrated to affect only the right hand and was mild in
nature.” The ALJ then commented on records from Dr. Kuersten:

11

. . .She is also seen for pain in the hands, waking up at night with
numbness or pain, using braces at night for relief. Findings are full range
of motion, good and equal grip strength, positive Tinel’s and Phalen’s
signs, no swelling (Exhibit 1F/3, 7/2006). . . .

12
13
14

As to plaintiff’s neck impairments, the ALJ stated:

15

. . .Her symptoms improve with treatment, in particular her degenerative
disease of the cervical spine and thoracic outlet syndrome which received
significant treatment being the subject of a Worker’s Compensation and
Disability claim, appear to resolve, and thereafter appear to flare
occasionally, resolving again with treatment such as medications, physical
therapy, chiropractic care. . . .

16
17
18
19

The ALJ then commented on records from Dr. Budhram related to neck issues:

20

From November 2011 through April 2012, claimant is under the care of
Dr. Harold Budhram (Exhibit 20F). The records show treatment for neck
pain . . . and other temporary conditions with medication. . . . Physical
examination findings sometimes reflect spasm, tenderness of the cervical
spine with left radicular symptoms, but normal strength and grip, some
loss of sensation to light touch. In January she requests a note to return to
work. . . .

21
22
23
24

///

25

///

26

///
6

1
2

Touching on all of plaintiff’s physical impairments discussed above, the ALJ then
summarized records related to plaintiff’s Worker’s Compensation claim:

3

Worker’s Compensation treatment records of Dr. Michael Moore, from
April 2007 through October 2009, shows the claimant diagnosed with mild
carpal tunnel syndrome bilateral, thoracic outlet syndrome, work-related
upper arms, neck, and back myofascial pain syndrome, degenerative disc
disease of the cervical spine, . . . and cervical radicular pain (Exhibit 6F).
There is regular treatment initially but by 2009 she cancels or does not
keep appointments six times, has some flares for which physical therapy
and medications are recommended. . . .(Exhibit 6F/4, 7, 13, 16). Physical
examination shows she is alert and appropriate, exhibits normal strength
but demonstrates positive thoracic outlet syndrome, some decrease in
range of motion of the neck, decrease in sensation of the finger tips, and
tenderness. With physical therapy, traction, and other exercises, there is
improvement, a reduction of symptoms of numbness and soreness in the
arms and hands, and she is undertaking physical activity such as ice
skating, walking in a creek bed. This record includes an MRI of the
cervical spine January 2007 evidencing severe neural foraminal narrowing
with no cord compression, mild canal narrowing C5-6, and mild neural
foraminal narrowing, and canal narrowing at other vertabral levels
(Exhibit 6F/33). EMG/NCS, from July 2007, shows no evidence of
cervical radiculopathy, mild right carpal tunnel syndrome without motor
involvement, no evidence of left carpal tunnel syndrome nor other upper
arm entrapment neuropathy (Exhibit 6F/38).

4
5
6
7
8
9
10
11
12
13
14

Finally, the ALJ discussed the medical opinion evidence concerning plaintiff’s physical
15
impairments:
16
17
18
19
20
21
22
23
24
25

The State Agency non-examining doctor opined she can frequently
balance, bend, crouch, crawl, kneel, stoop, and climb ramps and stairs but
only occasionally climb ladders, ropes, and scaffolds; she must avoid
constant/abrupt movements of the neck; can only occasionally overhead
reach with the left arm; can frequently handle and finger with the right
adm/hand; must avoid concentrated exposure to fumes, odors, dust, gases,
poor ventilation, etc., and hazards (dangerous machinery, unprotected
heights, etc.). Great weight is accorded this opinion, being sustained by
the record of good care, resolving with medications, injections, physical
therapy, chiropractic care, the severe symptoms from her degenerative disc
disease of the cervical spine, thoracic outlet syndrome leaving a condition
which now appears to flare occasionally, particularly when the claimant is
under stressful emotional and physical conditions, such as is revealed in
April 2012 when she claims her neck is killing her, and she is providing
round the clock care for her husband, losing any help there was in his care.
It is sustained . . . by diagnostic imagery and testing showing she has no
carpal tunnel syndrome in the left hand, simply the right, and it is mild; as
well the testing shows no evidence of cervical radiculopathy nor other
upper arm entrapment neuropathy.

26
7

1

Based on this record, the ALJ’s conclusion that plaintiff’s physical impairments

2

do not impact her ability to perform the exertional requirements of light work is supported by

3

substantial evidence. Most notably, there is no medical opinion evidence to the contrary.

4

Mental Impairments

5

Turning to plaintiff’s mental impairments, the ALJ generally summarized the

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

record as follows:
The record overall demonstrates that the claimant has sought inconsistent
care over the years for long-standing issues of depression and anxiety,
adult attention deficit hyperactivity disorder, and struggled with recovery
from alcohol dependence. She regularly ceases psychiatric medications
due to her own decisions, or by running out of them. Several times in the
medical records it is noted that her symptoms are due to untreated anxiety
and depression, and a number of times with regard to untreated or
unmanaged attention deficit hyperactivity disorder. There is no evidence
she ever engages in and sustains treatment for ADHD. There are several
instances where she fails to make scheduled appointments, or cancels, is
even discharged from care for her psychiatric problems evidencing further
non-compliance with treatment needed to manage her impairments.
Mental status examinations, when appropriately treated, reveal the
claimant’s mental conditions within normal limits with occasional
exhibitions of anxiety, or psychomotor agitation or tearfulness or
pressured speech or hyperkinetic, mainly due to the current situations
which are causing her stress. Heightened symptoms also generally
correspond to a cessation of treatment. These conclusions are supported
by Global Assessment of Functioning scores, the lowest of which is 60,
moderate symptoms and the highest of which is 75, slight, temporary
symptoms.
After discussing the treatment records in detail, the ALJ stated:
This scattered record of inconsistent treatment by multiple providers,
peppered by claimant’s choice to cease medications and fail to make
appointments, challenges a finding of a severe impairment that is as
intense, persistent, or limiting as she alleges. When combined with mental
status examinations which show generally and alert, oriented, cooperative,
competent individual who is occasionally noted to display anxiety, or other
symptoms of her impairments, her allegations cannot be fully credited.
When considered in light of her activities of daily living, which are rather
normal – raising a child and involved in her school activities, doing a good
range of household tasks, driving, shopping, interacting with friends and
family, and after a stroke event, providing full or partial care to a mentally
and physically disabled husband, it cannot be said that the claimant’s
symptoms occur to such a frequency or degree as to prohibit engagement
in work-related tasks on a regular and sustained basis. In addition, there is
the evidence of alcohol dependency to some degree in early partial
8

1
2

remission. According to her testimony February 22, 2012, is her new
sober date due to a relapse; with prior period of sobriety being one year,
and two years.

3

Finally, as to the opinion evidence relating to plaintiff’s mental impairments, the ALJ noted the

4

following: (1) examining psychologist Sidney Cormier assessed a GAF score of 60 in January

5

2010; (2) non-examining doctor R. Paxton opined that plaintiff should work in a non-public

6

environment with only limited public contact; and (3) examining doctor Robert Boyle concluded

7

that plaintiff would have difficulty working with the public.

8

As with plaintiff’s physical impairment, the ALJ’s conclusion that plaintiff’s

9

mental impairments do not impact her ability to perform the exertional requirements of light

10

work is also supported by substantial evidence, notably the lack of medical opinion evidence

11

indicating otherwise. As most, plaintiff’s mental limitations are moderate and do not preclude

12

application of the Grids. See Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th Cir. 2007) (rejecting

13

argument that ALJ was required to obtain vocational expert testimony in lieu of applying the

14

Grids in light of moderate mental limitations).

15
16

IV. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner’s final

17

decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY

18

ORDERED that:

19

1.

Plaintiff’s motion for summary judgment (Doc. 12) is denied;

20

2.

Defendant’s cross-motion for summary judgment (Doc. 13) is granted; and

21

3.

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

22
23
24
25

DATED: October 31, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

26
9