Dalton v. Commissioner of Social Security

Filing 28

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/7/2018 DENYING 16 Motion for Summary Judgment and GRANTING 21 Cross-Motion for Summary Judgment. Judgment is entered for the Commissioner. CASE CLOSED. (Fabillaran, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHANIE E. DALTON, 12 Plaintiff, 13 14 15 v. No. 2:17-cv-00443 CKD ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying an application for Supplemental Security Income (“SSI”) under Title 20 XVI of the Social Security Act (“Act”). For the reasons discussed below, the court will deny 21 plaintiff’s motion for summary judgment and grant the Commissioner’s cross-motion for 22 summary judgment. The parties have consented to magistrate judge jurisdiction pursuant to 28 23 U.S.C. § 636(c)(1). ECF Nos. 6 and 7. 24 BACKGROUND 25 Plaintiff, born February 24, 1974, applied on July 24, 2013 for SSI, alleging disability 26 beginning August 18, 2011. Administrative Transcript (“AT”) 210. Plaintiff alleged she was 27 unable to work due to fibromyalgia, anxiety, morphea, irritable bowel syndrome, carpal tunnel, 28 leukocytosis, chondromalacia patella, and migraines. AT 105. In a decision dated September 10, 1 1 2015, the ALJ determined that plaintiff was not disabled.1 AT 21-34. The ALJ made the 2 following findings (citations to 20 C.F.R. omitted): 3 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2015. 4 2. The claimant has not engaged in substantial gainful activity since August 18, 2011, the alleged onset date. 5 6 3. The claimant has the following severe impairments: fibromyalgia, migraines/headaches, irritable bowel syndrome, obesity, chondromalcia of the bilateral patella, anxiety disorder, and depressive disorder. 7 8 4. 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. 9 10 1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, 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 parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (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. 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 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, 107 S. Ct. at 2294 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 2 28 1 6 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work except frequent handling, fingering, and feeling; occasional stooping, squatting, crouching, crawling, and kneeling; occasional climbing of stairs and ramps, but never ropes, ladders, or scaffolds; and the workplace should be free of chemicals, dust, smoke, and fumes. Regarding mental functionality, the claimant is capable of unskilled, repetitive, routine work and will be absent from work one time per month. She will be off task up to 10% of the time at work, but still able to meet minimum production requirements of the job. 7 6. The claimant cannot perform any of her past relevant work. 8 7. The claimant was born on February 24, 1974 and was 37 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. 2 3 4 5 9 10 8. The claimant has at least a high-school education and is able to communicate in English. 11 9. Transferability of job skills is not an issue in this case because the claimant does not have past relevant work. 12 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform. 13 14 15 AT 23-32. 16 17 18 19 20 21 22 23 24 25 26 27 ISSUES PRESENTED Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) the ALJ did not give proper weight to the opinion of plaintiff’s treating physician Dr. Scheidt; (2) the ALJ did not provide clear and convincing reasons to discredit plaintiff’s subjective complaints; (3) the ALJ did not properly evaluate the cumulative effects of plaintiff’s impairments; and (4) the Commissioner did not meet her burdens at Step Five of the sequential evaluation. LEGAL STANDARDS The court reviews the Commissioner’s decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 28 3 1 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 2 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 3 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 4 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 5 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 6 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 7 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 8 9 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 10 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 11 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 12 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 13 administrative findings, or if there is conflicting evidence supporting a finding of either disability 14 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 15 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 16 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 17 ANALYSIS 18 A. Medical Evidence 19 Plaintiff asserts that the ALJ failed to properly credit the opinion of her treating physician, 20 Dr. Scheidt, and did not provide specific and legitimate reasons, based on substantial evidence, 21 for discounting Dr. Scheidt’s September 2014 assessment of plaintiff’s ability to do work-related 22 activities. Dr. Scheidt found plaintiff significantly limited due to fibromyalgia and migraines. 23 The weight given to medical opinions depends in part on whether they are proffered by 24 treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 25 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a 26 greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 27 F.3d 1273, 1285 (9th Cir. 1996). 28 //// 4 1 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 2 considering its source, the court considers whether (1) contradictory opinions are in the record, 3 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a 4 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 5 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be 6 rejected for “specific and legitimate” reasons, that are supported by substantial evidence. Id. at 7 830. While a treating professional’s opinion generally is accorded superior weight, if it is 8 contradicted by a supported examining professional’s opinion (e.g., supported by different 9 independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala , 53 F.3d 10 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In 11 any event, the ALJ need not give weight to conclusory opinions supported by minimal clinical 12 findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (treating physician’s conclusory, 13 minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a 14 non-examining professional, without other evidence, is insufficient to reject the opinion of a 15 treating or examining professional. Lester, 81 F.3d at 831. 16 Dr. Judy Scheidt, a Doctor of Osteopathic Medicine (D.O.), began treating plaintiff in 17 January 2012 for bilateral knee pain and migraines. AT 397-400. At a March 2012 follow-up 18 visit, plaintiff reported migraines, knee pain, and numbness in her hands to Dr. Scheidt. AT 391. 19 In October 2012, Dr. Scheidt treated plaintiff for anxiety and depression, with follow-up visits in 20 November and December of 2012. AT 358-359, 361-362, 364-366. Dr. Scheidt continued to 21 evaluate and treat plaintiff in 2013 and 2014, and medical records identified her as plaintiff’s 22 primary care physician (PCP) as of October 2013. AT 716. 23 On September 16, 2014, Dr. Scheidt filled out a functional capacity questionnaire for 24 plaintiff, whom she was treating for “fibromyalgia, migraine headache, IBS, morphea, [and] 25 depression/anxiety.” AT 634. Dr. Scheidt opined that plaintiff could lift less than 10 pounds, sit 26 for less than 2 hours, and stand for less than 2 hours, all due to fibromyalgia. AT 635. She 27 indicated that plaintiff would have to lie down at unpredictable intervals during a shift four days a 28 week, due to migraines. AT 636. Dr. Scheidt further opined that plaintiff could only 5 1 occasionally perform postural or manipulative activities and must avoid all pushing and pulling, 2 citing “fibromyalgia pain with certain movements.” AT 637-637. She stated that plaintiff would 3 miss more than three days of work per month and would otherwise be in moderate or severe pain 4 100% of the time. AT 638, 640. Dr. Scheidt further opined that, due mental impairments, 5 plaintiff would have limitations in the ability to remain at work for a full day, complete tasks, and 6 stay at work for an entire shift. AT 639. Finally, she stated that plaintiff had been “functioning at 7 the level described in this form” for more than three years. AT 640. The ALJ “found the opinions expressed in [Dr. Scheidt’s September 2014 report] 8 9 unpersuasive.” AT 31. After listing some of the above limitations, the ALJ wrote: 10 Dr. Scheidt attributes these limitations primarily to diagnoses of fibromyalgia and migraines without any citation to objective medical findings that would support such drastic limitations. Additionally, she concluded that the claimant would be unable to work for a full day, complete tasks, or complete an entire scheduled work shift without identifying any cause at all. (Ex. 11F/7.) 11 12 13 14 AT 31.2 The ALJ continued: “Concurrent notes . . . are similarly void of any explanation. (Ex. 15 16 15F/5.) In fact, there is no examination of the claimant’s back, neck, extremities, etc., at all. (Ex. 17 15F/6-7.)” AT 31. The ALJ cited Dr. Scheidt’s September 16, 2014 notes which state: 18 Plaintiff was diagnosed last year with fibromyalgia by Dr. Welk in Mt. Vernon, rheumatologist. She also has a lengthy history of migraine HA. . . . She says that if she does any housework for very long, she gets very stiff and achy. She has a hard time even lifting a gallon of milk or a basket of laundry at home. She has lost jobs due to missing too much work from her migraines. She will get a migraine for no week, then will have 3-4 a week. She has tried several medications without relief, she often just needs to rest. I will have her see neurology for consideration of botox. 19 20 21 22 23 AT 675. Dr. Scheidt conducted a physical exam, which was unremarkable, and the above notes 24 25 26 27 28 This section of the form asked the physician to “indicate whether your patient experiences limitations in ability to tolerate normal stressors of a competitive environment as listed below, and state the cause of the limitations.” AT 639. Dr. Scheidt checked boxes for “remaining at work for a full day,” “completing tasks,” and “staying at work for the entire scheduled work shift.” No space was provided to list the causes of these limitations, and Dr. Scheidt did not write in any. 6 2 1 appear to be based on plaintiff’s subjective complaints. See AT 676 (“Complains of stiffness, 2 muscle weakness and muscle aches”; “complains of headaches”). In her exam, Dr. Scheidt found 3 plaintiff “alert and cooperative” with “normal mood and affect” and “normal attention span and 4 concentration.” AT 677. The ALJ’s stated that Dr. Scheidt’s treatment of plaintiff’s fibromyalgia and migraines 5 6 was limited because she referred plaintiff to a rheumatologist for fibromyalgia and to a 7 neurologist for migraines. AT 31; see AT 572-573, 643.3 “Dr. Scheidt primarily treated the 8 claimant for acute transient conditions, such as bronchitis and medication management,” the ALJ 9 wrote. AT 31. “Thus, while Dr. Scheidt was the claimant’s primary physician, she did not exam 10 or treat most of the conditions that she opined caused the limitations. Consistent with that role, 11 her clinical notes provided no explanation for the drastic limitations posited in the [September 12 2014] form.” AT 31. The ALJ further found that the “overall medical record was not indicative 13 of such limitations.” AT 31. Plaintiff argues that medical evidence supports Dr. Scheidt’s survey findings, including 14 15 specialist notes that Dr. Scheidt reviewed. See AT 666 (rheumatologist’s August 2014 notes cc’d 16 to Dr. Scheidt). After the rheumatologist diagnosed plaintiff with fibromyalgia in July 20134, Dr. 17 Scheidt’s progress notes referred to this diagnosis and related symptoms. See AT 684 (September 18 2014 note that “she can barely lift coffee pots and other items . . . her arms hurt so bad with just 19 light housework that she cannot do anything for several days later”). However, the purpose of 20 plaintiff’s visit with Dr. Scheidt on that occasion was to treat cold symptoms. AT 684. Similarly, 21 on July 3, 2014, Dr. Scheidt noted plaintiff’s “severe” fibromyalgia, but the visit was prompted 22 by plaintiff’s hitting her elbow on the car door. AT 694. The court has reviewed both Dr. Scheidt’s progress notes concerning plaintiff’s 23 24 fibromyalgia and migraines and neurologist Dr. Welk’s progress notes as of July 2013. AT 391, 25 3 27 Plaintiff was referred to neurologist Dr. Kara Warden in November 2014, two months after Dr. Scheidt filled out the disability form, so Dr. Scheidt could not have been aware of Dr. Warden’s findings when filling out the form. AT 653. 28 4 26 See AT 572. 7 1 397-399, 666, 684, 686, 695, 707. While Dr. Scheidt regularly noted plaintiff’s fibromyalgia, 2 there is little evidence of the numerous significant limitations marked on the disability form. 3 There is evidence that plaintiff had frequent migraines (e.g., AT 391 (1-2/week in March 2012), 4 646 (migraines 15 days or more per month in November 2014)), but the ALJ discussed the 5 evidence of plaintiff’s migraines at length, concluding they were somewhat responsive to 6 medication and not as frequent or debilitating as claimed. AT 28. 7 Based on this record, the undersigned concludes that the ALJ’s reasons for discounting 8 Dr. Scheidt’s September 2014 disability form – i.e., a lack of medical evidence for the claimed 9 limitations and Dr. Scheidt’s treatment of mainly acute and transient conditions – constitute 10 specific and legitimate reasons supported by substantial evidence. 11 B. Credibility 12 Plaintiff next asserts that the ALJ erred in discrediting plaintiff’s testimony and subjective 13 14 complaints of pain. The ALJ determines whether a disability applicant is credible, and the court defers to the 15 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g., 16 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an 17 explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. 18 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be 19 supported by “a specific, cogent reason for the disbelief”). 20 In evaluating whether subjective complaints are credible, the ALJ should first consider 21 objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 22 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ 23 then may consider the nature of the symptoms alleged, including aggravating factors, medication, 24 treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the 25 applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent 26 testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a 27 prescribed course of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 28 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 554068 1 01; SSR 88-13. Work records, physician and third party testimony about nature, severity and 2 effect of symptoms, and inconsistencies between testimony and conduct also may be relevant. 3 Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek 4 treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ 5 in determining whether the alleged associated pain is not a significant nonexertional impairment. 6 See Flaten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, 7 on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 8 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177 n.6 9 (9th Cir. 1990). “Without affirmative evidence showing that the claimant is malingering, the 10 Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.” 11 Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 12 The ALJ found that, while plaintiff’s medically determinable impairments could 13 reasonably be expected to cause the alleged symptoms, “some of the claimant’s statements 14 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 15 credible for the reasons explained in this decision.” AT 28. First, the ALJ noted that plaintiff 16 was not diagnosed with fibromyalgia until July 2013 (nearly two years after the alleged disability 17 onset date), and that plaintiff apparently did not pursue rheumatologist Dr. Welk’s advice to see a 18 counselor for stress management “as a way to improve fibromyalgia pain.” AT 28; see AT 660. 19 Next, the ALJ found that “the evidence does not corroborate the extent of her alleged 20 migraines and frequently [sic] of dysfunction from such migraines.” AT 28. The ALJ cited 21 evidence that plaintiff’s treatment for migraines was sporadic (with a gap between March 2012 22 and August 2014) and that she reported improvement on certain medications. AT 28-29; see, 23 e.g., AT 643 (“started on Topamax 100 mg with marked improvement, resolution of daily 24 headaches and migraines decreased to 1-2 per week”); AT 648 (“Imitrex successful 2/3 of the 25 time in eliminating migraines.”). At other times, as plaintiff points out, her migraine medication 26 provided only temporary relief. 27 28 The ALJ noted plaintiff’s statements to Dr. Scheidt in 2012 that, having been laid off from her job in 2011, plaintiff feared finding a new job due to “low self esteem” and was seeing Dr. 9 1 Scheidt for anxiety and depression. AT 30; see AT 364. However, the ALJ observed that “the 2 medical record includes minimal mental health treatment and successful engagement in gainful 3 activity for many years.” AT 30. The ALJ also noted plaintiff’s testimony that her job at a call 4 center was terminated in August 2011 due to an error in her medical paperwork after a leave – 5 i.e., not due to a disabling condition that made her unable to perform the work. AT 30; see AT 6 52-53. Plaintiff testified that she periodically applied for work over the next year and turned 7 down one job offer because it was a 45-minute commute from her house. AT 53-55. 8 Finally, the ALJ found that plaintiff’s 9 12 specific allegations of dysfunction are also inconsistent with her activities. For example, the claimant alleged that she was unable to sit, stand, or walk for long enough to complete a full workday. However, the claimant was able to negotiate long plane rides to Texas on a yearly basis. The claimant took a long road trip to California in 2014, which indicates she is capable of prolonged sitting, as found above. 13 AT 30; see AT 45-48. See Tomasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (finding that 14 ALJ properly inferred from plaintiff’s travel to Venezuela that he was not as physically limited as 15 he claimed). 10 11 16 Here, the ALJ provided specific reasons for discounting plaintiff’s credibility, supported 17 by substantial evidence including plaintiff’s failure to seek counseling in relation to her 18 fibromyalgia, her sporadic treatment for migraines and the at least partial effectiveness of such 19 treatment, her claims that mental health issues prevented her from looking for work absent a 20 significant record of mental health treatment, and her multiple long-distance trips with few 21 problems from her alleged disabilities. The undersigned concludes that the ALJ supplied legally 22 sufficient reasons to make an adverse credibility finding. 23 C. Presumptive Disability 24 Plaintiff next claims that, due to the cumulative effect of her impairments, the ALJ should 25 have found her presumptively disabled under Listing 1.02 (Major Dysfunction of Joints) and 1.04 26 (Disorder of the Spine). See AT 24. 27 28 The Social Security Regulations “Listing of Impairments” is comprised of impairments to certain categories of bodily systems and/or diseases severe enough to preclude a person from 10 1 performing gainful activity. Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990); 20 C.F.R. § 2 404.1520(d). Conditions described in the listings are considered so severe as to be irrebuttably 3 presumed disabling. 20 C.F.R. § 404.1520(d). In meeting or equaling a listing, all the 4 requirements of that listing must be met. Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 1985). If 5 a claimant’s impairment or combination of impairments meets or exceeds a “listing,” no specific 6 finding is necessary as to the claimant’s ability to perform his or her past relevant work or any 7 other jobs. 20 C.F.R. § 404.1520(d). 8 9 To meet Listing 1.02, the claimant must show major dysfunction of a joint characterized by gross anatomical deformity and chronic joint pain and stiffness with signs of limitation of 10 motion or other abnormal motion of the affected joint(s), and findings on appropriate medically 11 acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected 12 joint(s). 20 C.F.R. § Pt. 404, Subpt. P, App. 1. The claimant must also meet either parts (A) 13 involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in 14 inability to ambulate effectively, or (B) involvement of one major peripheral joint in each upper 15 extremity. Id. Here, plaintiff has made no medical showing of “gross anatomical deformity” or 16 the inability to “ambulate effectively” per the regulation. See 20 C.F.R. Part 404, Subpart P, 17 Appendix 1, Listing 100B2b(2) (examples of inability to ambulate effectively include the 18 inability to walk without the use of a walker, two crutches, or two canes). 19 Listing 1.04A requires: 20 Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscles weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine). 21 22 23 24 See 20 C.F.R. Part 404, Subpart P, Appendix 1. As above, plaintiff has not shown that she meets 25 the requirements of this listing. Plaintiff argues that her documented fibromyalgia symptoms 26 medically equal the listing for presumptive disability due to Disorder of the Spine. However, 27 merely alleging the overall functional impact of plaintiff’s impairments is insufficient to meet or 28 equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). The undersigned 11 1 concludes that the ALJ did not err in declining to find plaintiff presumptively disabled.5 2 D. Vocational Expert 3 Lastly, plaintiff asserts that the ALJ erred in finding that there were jobs that existed in 4 significant numbers in the national economy that plaintiff could perform. At this step, the ALJ 5 wrote: [T]he claimant’s ability to perform all or substantially all of the requirements of [the full range of sedentary work] has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled sedentary occupational base, I asked the [VE] whether jobs exist in the national economy for an individual with the claimant’s age, education, work experience, and residual functional capacity. The [VE] testified that given all of these factors the individual would be able to perform the requirements of representative occupations such as an Addresser, which is sedentary unskilled (SVP 2) work with 12,600 jobs in the nation; table worker, which is sedentary unskilled (SVP 2) work with 8,000 jobs in the nation, hand bander, [also SVP 2], with 11,300 jobs in the nation; callout operator, [also SVP2], with 1,300 jobs in the nation; and a telephone quotation clerk, [also SVP2], with 69,000 jobs in the nation. 6 7 8 9 10 11 12 13 Pursuant to SSR 00-4p, I have determined that the [VE’s] testimony is consistent with the information contained in the Dictionary of Occupational Titles. 14 15 16 AT 33 (DOT #s omitted); see AT 64-67. The ALJ noted that the table worker and hand bander 17 jobs had been reduced by 50% to accommodate for environmental restrictions in plaintiff’s RFC. 18 AT 33. See 20 C.F.R. § 404.1566(b) (providing that “[w]ork exists in the national economy when 19 there is a significant number of jobs (in one or more occupations) having requirements which you 20 are able to meet”) (emphasis added). Because more than 25,000 jobs in total were available, 21 plaintiff’s argument that four listed jobs had fewer than 25,000 positions available is unavailing. 22 CONCLUSION 23 For the reasons stated herein, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s motion for summary judgment (ECF No. 16) is denied; 25 //// 26 27 28 Plaintiff’s remaining argument that the ALJ erred in determining her residual functional capacity relies largely on plaintiff’s subjective complaints and Dr. Scheidt’s findings, both discussed above. 12 5 2. The Commissioner’s cross-motion for summary judgment (ECF No. 21) is granted; 1 2 3 4 and 3. Judgment is entered for the Commissioner. Dated: June 7, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 2/dalton0443.ssi.ckd 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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