Goodbar v. Astrue

Filing 17

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; REMANDING TO AGENCY 15 16 (Illston, Susan) (Filed on 11/26/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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Plaintiff,

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No. C 11-04572 SI

COLLEEN M. GOODBAR,

ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT;
REMANDING TO AGENCY

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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The parties have filed cross-motions for summary judgment in this Social Security appeal.

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Based upon the Court’s review of the parties’ papers and the administrative record, the Court hereby

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GRANTS plaintiff’s motion, DENIES defendant’s motion, and REMANDS to the Social Security

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Administration for further proceedings consistent with this Order.

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BACKGROUND

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On October 15, 2008, plaintiff Colleen M. Goodbar filed a claim for Disability Insurance

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Benefits under Title II of the Social Security Act, alleging disability beginning July 1, 2007.

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Administrative Record (“AR”) 134. Plaintiff claimed she was unable to work as a result of acquiring

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fibromyalgia, allegedly causing plaintiff to experience “daily moderate to severe pain, aggravated by

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any physical activity.” Id. at 355. Complaining of total body pains, painful joints, the swelling of her

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hands and fingers, numbness in her face, migraines, and chronic pain, among other symptoms, plaintiff

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visited many physicians. Id. at 149. Her diagnoses included a “complicated case of fibromyalgia,” post-

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traumatic stress disorder, major depression, chronic pain, hypothyroidism, and gastroesophageal reflux

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disease. Id. at 271, 354.
On January 17, 2009, Dr. Doug Dolnak, a State agency psychiatric consultant who examined

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plaintiff, diagnosed plaintiff with fibromyalgia and opined that plaintiff “can perform simple and

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repetitive tasks[,] . . . would have some mild difficulty with detailed and complex tasks secondary to

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mild difficulty with attention and concentration related to depression and anxiety," but opined that

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plaintiff “can maintain regular attendance in the workplace.” Id. at 213-14. On February 1, 2009, Dr.

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Philip Seu, a State agency internist consultant who examined plaintiff, confirmed the fibromyalgia

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diagnosis. Id. at 219. He stated that plaintiff would be able to stand or walk in an eight-hour workday

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United States District Court
For the Northern District of California

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for six hours with a break every hour, can lift and carry 20 pounds occasionally and 10 pounds

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frequently, has no postural limitations, and can perform most reaching, handling, and fingering with

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either hand. Id. On February 17, 2009, Dr. Esprin, a State agency medical examiner , adopted Dr. Seu’s

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findings, but determined plaintiff had further postural and manipulative limitations. Id. at 223. Dr.

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Esprin found that plaintiff could stand or walk in an eight-hour workday for six hours, but contrary to

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Dr. Sue, found that plaintiff needed only normal breaks. Id. On July 13, 2009, Dr. Ekaterina

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Malinovsky, plaintiff’s treating physician for two years, opined that plaintiff cannot work and needs to

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be on disability because she will not be able to keep a job in the foreseeable future. Id. at 271. Dr.

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Malinovsky also found that plaintiff has “a depressed and anxious mood due to a Post Traumatic Stress

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Disorder.” Id.

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The Social Security Administration (“SSA”) initially denied plaintiff’s disability claim on March

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23, 2009. Id. at 58. SSA denied her claim again upon reconsideration on May 5, 2009. Id. at 65.

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Plaintiff requested a hearing on June 15, 2009, and appeared before an Administrative Law Judge

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(“ALJ”) on June 24, 2010. Id. at 70. She testified along with a vocational expert (“VE”). Id. at 32-55.

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Following the hearing, the ALJ denied her claim on July 22, 2010. Id. at 23.

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The ALJ reached his decision after applying the five-step sequential evaluation procedure set

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forth in 20 C.F.R. § 404.1520(a)(4). The ALJ found at step one that the claimant did not engage in

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substantial gainful activity during the period at issue. AR 17. Since she “had marginal earnings of $497

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in 2008,” the ALJ found that “the earnings did not rise to the level of substantial gainful activity.” Id.
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At step two, the ALJ determined that plaintiff had no severe impairment or combination of impairments

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besides fibromyalgia and obesity. Id. In making this limited determination, he was persuaded by

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plaintiff’s own testimony that her thyroid symptoms were controlled by medication, id. at 41, 294, and

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the objective evidence suggesting that plaintiff’s mental impairments do not cause more than a minimal

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limitation. Id. at 17.

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At step three, the ALJ found that plaintiff had no impairments that met or medically equaled one

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of the administrative regulations’ listed impairments. Id. At step four, he determined plaintiff’s residual

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functional capacity (“RFC”) as follows:

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[T]he claimant has the residual functional capacity to perform a limited range
of light work as defined in 20 C.F.R. § 404.1567(b). She can (i) lift/carry up
to 25 pounds occasionally and 10 pounds frequently; and (ii) sit for up to 6
hours, and stand or walk for approximately 6 hours, in an 8 hour workday,
with normal breaks. She can climb ramps or stairs, and ladders, ropes or
scaffolds, occasionally. She can balance, stoop kneel, crouch and crawl,
occasionally. Finally, she can push/pull with the right upper extremity
occasionally, and can handle and finger with both hands frequently.

United States District Court
For the Northern District of California

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Id. at 19.

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In making this finding, the ALJ relied “for the most part on the physical residual functional

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capacity assessment of . . . medical examiner H. M. Estrin, M.D.” Id. at 21. Also, the ALJ found

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plaintiff’s allegations “that her pain was constant and debilitating” not credible. He reasoned that the

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medical evidence, viewed most favorably to plaintiff, shows that “she experiences only localized and

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intermittent pain of reasonably short duration,” her pain is managed with medication, and that plaintiff

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testified that her medication has positive effects which allow her to perform physical activity. Id. at 22.

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Finally, the ALJ accorded less probative weight to Dr. Malinovsky’s medical opinion, since it

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contradicted the rest of the objective medical evidence. Id. The ALJ then determined, during step four,

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that plaintiff was not disabled because she could perform her past work as a cash accounting clerk and

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as an accounting clerk. The ALJ did not proceed to step five.

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After the ALJ denied her claim, plaintiff filed a complaint with this Court on September 14,

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2011, seeking judicial review of the Commissioner’s final decision pursuant to 42. U.S.C. § 405(g).

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Both parties have moved for summary judgment.

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STANDARD OF REVIEW

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A district court’s review of a disability determination is limited, and a final administrative

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decision may be altered only if it is not supported by substantial evidence or if it is based on legal error.

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Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (citation and internal quotation omitted).

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Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Even if substantial

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evidence supports the ALJ’s factual findings, the decision must be set aside if improper legal standards

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were applied in reaching that decision. See Frost v. Barnhart, 314 F.3d 359, 367 (9th Cir. 2002).

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United States District Court
For the Northern District of California

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DISCUSSION

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In her appeal, plaintiff makes two arguments. First, plaintiff asserts that the ALJ erred when

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formulating plaintiff’s RFC by improperly rejecting (1) Dr. Dolnak’s opinion regarding plaintiff’s

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alleged mental impairments, and (2) Dr. Seu’s opinion that plaintiff can stand or walk at work for six

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hours in an eight-hour workday with breaks every hour. Specifically, in regard to the rejection of Dr.

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Dolnak’s opinion, plaintiff argues that the ALJ committed legal error by not considering, as required

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by 20 C.F.R. § 404.1545, plaintiff’s nonsevere mental impairments in the RFC analysis. Second,

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plaintiff asserts that the ALJ improperly discredited her subjective complaints.

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For the reasons described below, the Court finds that the ALJ erred at step four, during his

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RFC analysis, by (1) failing to address Dr. Dolnak’s opinion regarding plaintiff’s mental impairments,

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and (2) failing to address Dr. Seu’s opinion regarding plaintiff requiring hourly breaks at work. The

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Court does not find that the ALJ improperly discredited plaintiff’s testimony. Therefore, the Court

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remands to the ALJ in order to: (1) address plaintiff’s alleged mental impairments in his RFC analysis

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and explain why the alleged mental impairments will not prohibit plaintiff from performing her past

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work, and (2) address Dr. Seu’s opinion about plaintiff requiring hourly breaks at work in his RFC

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analysis.

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Improperly Rejecting Medical Evidence

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The ALJ should, at the very least, provide “specific and legitimate” reasons in the decision for

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either expressly or implicitly rejecting the opinions of a medical expert or examining physician. Murphy

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v. Comm’r Soc. Sec. Admin., 423 F. App’x 703, 705 (9th Cir. 2011) (citing Lester v. Chater, 81 F.3d

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821, 830 (9th Cir.1996)).

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A.

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Plaintiff contends that the ALJ committed legal error by not including plaintiff’s nonsevere

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mental impairments in his RFC analysis. The Court agrees. Defendant argues that “[t]he ALJ is not

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United States District Court
For the Northern District of California

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required to include in [p]laintiff’s RFC mental limitation[s] that are not more than mild or moderate.”

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Def. Mot. at 4. However, even if plaintiff’s mental impairments are not severe, the ALJ must consider

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all impairments, severe and nonsevere, in the remaining steps. See 20 C.F.R. § 404.1545(e).

Dr. Dolnak’s Opinion

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In assessing plaintiff’s RFC and determining that plaintiff could work as a cash accounting

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clerk and an accounting clerk, the ALJ did not discuss plaintiff’s mental limitations. Also, the

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hypothetical questions that the ALJ posed to the vocational expert similarly failed to include any

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mention of plaintiff’s alleged mental impairments. The evidence indicates that plaintiff “would have

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some mild difficulty performing work activities . . . without special or additional supervision regarding

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. . . periods of depression and anxiety,” AR 214 (Dr. Dolnak); plaintiff has an adjustment disorder,

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mixed anxiety, and depression, id. at 227 (Dr. Estrin); plaintiff has a mood disorder, id. at 240 (Dr.

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Suansilppongse); and plaintiff has “a depressed and anxious mood due to a Post Traumatic Stress

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Disorder.” Id. at 271 (Dr. Malinovsky). The ALJ merely states, in step three, that the RFC “reflects the

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degree of limitation I have found in the ‘paragraph B’ mental function analysis.” Id. at 19. This is

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insufficient, and does not demonstrate that the ALJ fully considered plaintiff’s nonsevere impairments

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in his RFC analysis during step four. See 20 C.F.R. § 404.1545(e).

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B.

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Plaintiff contends that the ALJ ignores Dr. Seu’s finding that plaintiff “should be able to stand

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or walk in an eight-hour workday” for six hours “with breaks every hour.” AR at 219. Defendant

Dr. Seu’s Opinion

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argues that the ALJ actually agreed with and adopted Dr. Seu’s findings by basing his RFC analysis on

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Dr. Estrin’s opinion―which accepts Dr. Seu’s findings. Also, defendant contends that the ALJ gave

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plaintiff the “benefit of the doubt” by adopting Dr. Estrin’s opinion because Dr. Estrin, compared to Dr.

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Seu, found that plaintiff had a greater degree of postural and manipulative limitation. Def. Mot. at 4.

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The Court agrees with defendant that adopting Dr. Estrin’s opinion was favorable to plaintiff

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because Dr. Estrin, compared to Dr. Seu, found that plaintiff possesses a greater degree of exertional,

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postural, and manipulative limitation. However, during the RFC analysis, the ALJ ignored Dr. Seu’s

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opinion regarding plaintiff having hourly, as opposed to normal, breaks at work. Whether plaintiff

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needs hourly or normal breaks should be a factor in both the determination of plaintiff’s RFC and the

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United States District Court
For the Northern District of California

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kind of work plaintiff is capable of performing. Therefore, the Court remands and directs the ALJ to

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either include Dr. Seu’s opinion in the RFC analysis, or provide explanation for ignoring or rejecting

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it.

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Rejecting Plaintiff’s Testimony

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Plaintiff argues that the ALJ erred by failing to provide specific reasons for the rejection of

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plaintiff’s testimony regarding her constant and debilitating pain. An ALJ cannot “reject a claimant’s

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complaints [without] specific, cogent reasons for the disbelief.” Lester, 81 F.3d at 834 (internal citations

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omitted). Further, “[g]eneral findings are insufficient; rather the ALJ must identify what testimony is

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not credible and what evidence undermines the claimant’s complaints.” Id. (citing Dodrill v. Shalala,

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12 F.3d 915, 918 (9th Cir.1993)).

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Here, the ALJ determined that “the claimant’s medically determinable impairments could

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reasonably be expected to cause the alleged symptoms[,]” but found plaintiff’s testimony regarding “the

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intensity, persistence and limiting effects” of her symptoms not credible. Id. at 20. No evidence of

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malingering exists in this case; therefore, the ALJ was required to offer “specific, clear and convincing

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reasons” for rejecting plaintiff’s testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)

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(internal citations omitted).

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The Court finds that the ALJ met this standard. As in the Ninth Circuit cases which have

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upheld ALJ rejections of claimants’ testimony, the ALJ in this case “pointed to specific evidence in the
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record . . . that undermined” the plaintiff’s testimony. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d

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685 (9th Cir. 2009). Here, the ALJ pointed to specific evidence in the record to show that plaintiff

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reported to her medical examiners that: her pain was improving and could be managed with morphine;

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there were positive effects of the medication in relieving her pain; she was sleeping better; and she

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regained the ability to perform and tolerate activities. See AR 324-332. Therefore,“specific, clear and

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convincing reasons” for rejecting plaintiff’s testimony were provided. Lingenfelter, 504 F.3d at 1036

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(internal citations omitted).

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CONCLUSION

United States District Court
For the Northern District of California

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For the foregoing reasons, the Court GRANTS plaintiff’s motion for summary judgment and

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DENIES defendant’s motion for summary judgment. Docket Nos. 15 & 16. The Court REMANDS to

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the Social Security Administration for further proceedings consistent with this Order.

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IT IS SO ORDERED.

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Dated: November 26, 2012

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SUSAN ILLSTON
United States District Judge

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