Cruz Davis v. Astrue

Filing 30

ORDER by Judge Hamilton granting in part and denying in part 27 Motion for Summary Judgment (pjhlc3, COURT STAFF) (Filed on 7/23/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 11-1819 PJH
DENISE R. CRUZ DAVIS,

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United States District Court
For the Northern District of California

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ORDER RE PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND
DEFENDANT’S CROSS-MOTION FOR
SUMMARY JUDGMENT

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

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Plaintiff Denise R. Cruz Davis (“Davis”) seeks judicial review of the Commissioner of

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Social Security’s (“Commissioner”) decision denying her claim for supplemental security

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income. This action is before the court on the parties’ cross-motions for summary

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judgment, and Davis’ alternative motion to remand. Having read the parties’ papers,

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administrative record and relevant legal authority, the court REMANDS this case to the ALJ

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for further proceedings consistent with the court’s order.

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BACKGROUND

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Davis, who was forty-four years-old when she filed for disability, has a high school

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education and previously worked as a caregiver, kennel cleaner, cashier, packager, and

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housekeeper. She alleges disability since December 1, 2006, on the basis of spine, back,

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shoulder, stomach, head and hand problems, loss of energy, loss of mobility, and other

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body pain. She claims these conditions, in addition to her specific impairments including

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obesity, pseudo-tumor, arthritis, fibromyalgia, gastroesophageal reflux disease,

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spondylolisthesis, headaches, and other alleged medical conditions render her disabled.

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On December 20, 2007, Davis applied for supplemental security income (“SSI”).

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The Commissioner denied Davis’ application both initially and upon reconsideration. Davis

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subsequently requested a hearing before an administrative law judge (“ALJ”), which took

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place on April 23, 2010. On June 16, 2010, the ALJ issued a decision finding Davis not

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disabled under the Social Security Act.

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Davis subsequently appealed to the Appeals Council, which, on March 14, 2011,

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denied her request to review the ALJ’s decision. However, because it appeared that the

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Appeals Council may have had an incomplete record before it, on March 16, 2011, the

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Appeals Council notified Davis that it was allowing her to submit additional information

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and/or evidence, within twenty-five days of that notice. Davis failed to do so. In a

United States District Court
For the Northern District of California

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subsequent May 6, 2011 notice, the Appeals Council notified Davis that it had previously

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set aside its March 14, 2011 decision to consider additional information and/or arguments,

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but that because Davis failed to submit any, it again found no reason to review the ALJ’s

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decision and was denying review. Thus, the ALJ’s June 16, 2010 decision became the

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Commissioner’s final decision.

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Apparently, in lieu of submitting additional evidence to the Appeals Council per its

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March 16, 2011 notice, on April 14, 2011, prior to the Appeals Council’s final May 6, 2011

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decision, Davis instead filed the instant appeal before this court.

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LEGAL STANDARDS
A.

Sequential Analysis
The Social Security Act (“the Act”) provides for the payment of disability insurance

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benefits to people who have contributed to the Social Security system and who suffer from

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a physical or mental disability. See 42 U.S.C. § 423(a)(1). To evaluate whether a claimant

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is disabled within the meaning of the Act, the ALJ is required to use a five-step analysis. 20

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C.F.R. § 404.1520. The ALJ may terminate the analysis at any stage where a decision can

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be made that a claimant is or is not disabled. See Pitzer v. Sullivan, 908 F.2d 502, 504 (9th

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Cir. 1990).

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At step one, the ALJ determines whether the claimant is engaged in any “substantial
gainful activity,” which would automatically preclude the claimant from receiving disability
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benefits. See 20 C.F.R. § 404.1520(a)(4)(i). If not, at the second step, the ALJ must

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consider whether the claimant suffers from a severe impairment which “significantly limits

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[the claimant’s] physical or mental ability to do basic work activities.” See 20 C.F.R. §

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404.1520(a)(4)(ii). At the third step, the ALJ compares the claimant’s impairment to a

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listing of impairments in the regulations. If the claimant’s impairment or combination of

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impairments meets or equals the severity of any medical condition contained in the listing,

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the claimant is presumed disabled and is awarded benefits. See 20 C.F.R.

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§ 404.1520(a)(4)(iii).
If the claimant’s condition does not meet or equal a listing, the ALJ must proceed to

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United States District Court
For the Northern District of California

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the fourth step to consider whether the claimant has sufficient “residual functional capacity”

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(“RFC”) to perform her past work despite the limitations caused by the impairment. See 20

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C.F.R. § 404.1520(a)(iv). If the claimant cannot perform her past work, the Commissioner

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must show, at step five, that the claimant can perform other work that exists in significant

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numbers in the national economy, taking into consideration the claimant’s “residual

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functional capacity, age, education, and past work experience.” See 20 C.F.R.

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§ 404.1520(a)(4)(v).

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Overall, in steps one through four, the claimant has the burden to demonstrate a

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severe impairment and an inability to engage in her previous occupation. Andrews v.

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Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995). If the analysis proceeds to step five, the

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burden shifts to the Commissioner to demonstrate that the claimant can perform other

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work. Id.

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Should the ALJ issue an unfavorable decision for the claimant, the claimant may

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request review of the decision with the Appeals Council. 20 C.F.R. § 404.967. The

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Appeals Council “may deny or dismiss the request for review, or it may grant the request

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and either issue a decision or remand the case to an administrative law judge.” Id. The

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claimant may submit documents or other evidence with the request for review, which the

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claimant would like the Appeals Council to consider. 20 C.F.R. § 404.968. Moreover, the

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Appeals Council is required to evaluate the entire record and “[i]f new and material
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evidence is submitted, the Appeals Council shall consider the additional evidence only

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where it relates to the period on or before the date of the administrative law judge hearing

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decision.” 20 C.F.R. § 404.970(b).

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B.

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Standard of Review
This court has jurisdiction to review final decisions of the Commissioner pursuant to

42 U.S.C. § 405(g). The ALJ’s decision must be affirmed if the ALJ’s findings are

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“supported by substantial evidence and if the [ALJ] applied the correct legal standards.”

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Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). “Substantial

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evidence” means more than a scintilla, but less than a preponderance, or evidence which a

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United States District Court
For the Northern District of California

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reasonable person might accept as adequate to support a conclusion. Thomas v. Barnhart,

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278 F.3d 947, 954 (9th Cir. 2002). The court is required to review the administrative record

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as a whole, weighing both the evidence that supports and detracts from the ALJ’s

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conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). Where the evidence

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is susceptible to more than one rational interpretation, the court must uphold the ALJ’s

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decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).

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Additionally, the harmless error rule applies where substantial evidence otherwise

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supports the ALJ’s decision. Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1991) (citing

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Booz v. Sec’y of Health and Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984)).

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A decision by the Appeals Council to deny review of the ALJ’s decision “is a

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non-final agency action not subject to judicial review because the ALJ’s decision becomes

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the final decision of the Commissioner.” Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d

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1228, 1231 (9th Cir. 2011). However, “when the Appeals Council considers new evidence

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in deciding whether to review a decision of the ALJ, that evidence becomes part of the

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administrative record, which the district court must consider when reviewing the

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Commissioner’s final decision for substantial evidence.” Brewes v. Comm’r of Soc. Sec.

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Admin., 2012 WL 2149465 at *4 (9th Cir. 2012); see also Harman v. Apfel, 211 F.3d 1172,

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1180 (9th Cir. 2000).

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ALJ’S FINDINGS

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On June 16, 2010, the ALJ found Davis not disabled, concluding that she could still

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perform jobs within the national economy. At step one, the ALJ determined Davis had not

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engaged in “substantial gainful activity” since her onset date. At step two, the ALJ found

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Davis had four severe impairments, including obesity, pseudo-tumor, arthritis, and

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fibromyalgia. In addition, the ALJ found that Davis had other non-severe impairments

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including gastroesophageal reflux disease, grade I spondylolisthesis of L3 on L4 and

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headaches.1

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At step three, the ALJ concluded that Davis did not have an impairment or

United States District Court
For the Northern District of California

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combination of impairments that met the criteria of any section of the listing of impairments.

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The ALJ then decided Davis possessed an RFC to perform at least sedentary work. At

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step four, the ALJ found that Davis could not perform her past relevant work, and the ALJ

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proceeded to step five. Based on Davis’ age, education, work experience, RFC, and

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application of Medical-Vocational Guidelines (also known as the “Grids”), the ALJ

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determined Davis could perform jobs within the national economy, and therefore found

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Davis not disabled.

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APPEALS COUNCIL ACTION

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Davis appealed the ALJ’s decision to the Appeals Council, which denied her request

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for review on March 14, 2011. In support of her appeal, Davis submitted new documents to

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the Appeals Council that were not previously before the ALJ, which the Appeals Council

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considered. The new evidence included a post-decision fibromyalgia RFC questionnaire

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dated July 15, 2010, from Dr. Sookra, and post-hearing mental health records from

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Licensed Clinical Social Worker (“LCSW”) Kevin Gutfeld. The new evidence is described

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Pseudo-tumor is a “disorder most commonly seen in obese young women,
characterized clinically by headache, blurred vision, and visual obscurations resulting from
increased intracranial hypertension.” Stedman’s Medical Dictionary, 1593 (28th ed. 2006).
Fibromyalgia is “[a] common syndrome of chronic widespread soft-tissue pain accompanied
by weakness, fatigue, and sleep disturbances; the cause is unknown. ” Id. at 725.
Spondylolisthesis is “[f]orward movement of the body of one of the lower lumbar vertebrae on
the vertebra below it, or on the sacrum.” Id. at 1813.
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below.

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i.

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Dr. Sookra, one of Davis’ treating physicians, submitted a post-ALJ hearing

Dr. Sookra’s Post-Hearing Fibromyalgia RFC Questionnaire

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fibromyalgia RFC questionnaire related to many of Davis’ impairments, conditions and

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symptoms including her pain. Most notably, Dr. Sookra indicated Davis suffered from

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fibromyalgia, carpal tunnel syndrome and pseudo-tumor. Likewise, Dr. Sookra gave a

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prognosis that Davis had gastroesophageal reflux disease, hyperlipidemia, sciatica,

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osteoarthritis, and headaches. Furthermore, Dr. Sookra noted that clinical findings

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indicated Davis had grade I spondylolisthesis of L3 on L4, mild degenerative disc disease

United States District Court
For the Northern District of California

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and severe to moderate facet arthropathy.

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The questionnaire also detailed Davis’ pain. Dr. Sookra indicated Davis experienced

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pain in six different bilateral locations on her body and that she experienced “pain on a daily

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basis.” A.T. 420. In relation, Dr. Sookra noted Davis “frequently” experienced pain or other

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symptoms, which was “severe enough to interfere with [the] attention and concentration

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needed to perform even simple work tasks[.]” A.T. 420. Additionally, Dr. Sookra noted that

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Davis was capable of low stress jobs in terms of tolerable work stress.

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As for Davis’ functional limitations, Dr. Sookra indicated Davis could sit for one hour

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before needing to get up and stand for 30 minutes before needing to sit or walk around.

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Dr. Sookra also found that Davis could “rarely” lift 10 pounds in a competitive work setting.

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A.T. 422. The questionnaire also indicated Davis could “occasionally” twist, stoop, crouch,

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climb ladders, and climb stairs. A.T. 422. Finally, Dr. Sookra found that Davis had

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limitations related to doing repetitive reaching, handling or fingering.

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ii.

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Davis also submitted mental health progress notes from LCSW Gutfeld, which were

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LCSW Kevin Gutfeld’s Mental Health Progress Notes

considered by the Appeals Council.

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In the progress notes dated September 3, 2010, LCSW Gutfeld gave a clinical

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assessment that Davis had depression and an anxiety disorder. Moreover, LCSW Gutfeld

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gave Davis a GAF score of 55.2

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LCSW Gutfeld’s progress notes from September 23, 2010, mentioned that Dr.

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Sookra wanted to start Davis on Cymbalta for her pain, anxiety and depression. In general,

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other findings were “unremarkable” or “appropriate,” though LCSW Gutfeld listed Davis’

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mood as anxious. A.T. 407.

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Finally, in the progress notes dated January 6, 2011, LCSW Gutfeld noted that Davis

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talked about her pain and depression. In addition, LCSW Gutfeld gave a clinical

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assessment of depression and an anxiety disorder, but he noted Davis had a GAF score of

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60, which represented an improvement from the prior notes.

United States District Court
For the Northern District of California

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iii.

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In its March 14, 2011 decision denying Davis’ request to review the ALJ’s decision,

Appeals Council’s Decisions

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the Appeals Council indicated that it considered Davis’ objections to the ALJ’s decision and

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the additional evidence Davis provided. The Appeals Council noted that Davis objected to

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the ALJ’s evaluation of Nurse Meyer’s opinion, a third-party function report, and Davis’

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insurance status.

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As for Davis’ objections to the ALJ decision, the Appeals Council explained that the

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ALJ found Nurse Meyer’s opinion to be “inconsistent with the record[,] . . . based on

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subjective complaints, and it lack[ed] support from diagnostic studies or objective findings

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on examination.” A.T. 12. Likewise, the Appeals Council reiterated that the ALJ found the

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third-party function report to be repetitive, and that Davis’ insurance status did not qualify

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her for benefits.

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Regarding the post-decision evidence Davis submitted, the Appeals Council

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A GAF score of 51-60 indicates “[m]oderate symptoms (e.g. flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational,
or school functioning (e.g. few friends, conflicts with peers or co-workers).” American
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders (4th ed. Text Revision
2000) (DSM-IV-TR), 34. Note, however, “[t]he Commissioner has determined the GAF scale
‘does not have a direct correlation to the severity requirements in [the Social Security
Administration’s] mental disorders listings.’” McFarland v. Astrue, 288 Fed. Appx. 357, 359
(9th Cir. 2008) (quoting Revised Medical Criteria for Evaluating Mental Disorders and
Traumatic Brain Injury, 65 Fed.Reg. 50,746, 50,765 (Aug. 21, 2000)).
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characterized Dr. Sookra's questionnaire as “an incomplete residual functional capacity by

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a non-treating physician," and LCSW Gutfeld's notes as an "initial intake with one treatment

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session for depression.” A.T. 12. It further determined that Dr. Sookra’s report was

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“duplicative of Nurse Meyer’s opinion and would not support a change in the determined

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residual functional capacity.” A.T. 12. As for LCSW Gutfeld's notes, the Appeals Council

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noted that as they pertained to depression, they asserted "a new condition not alleged in

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the claim and would not meet the durational requirement at the time of [the] decision.” A.T.

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12.
It is not entirely clear, but it appears that the Appeals Council’s March 14, 2011

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United States District Court
For the Northern District of California

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decision characterized Dr. Sookra's questionnaire as "incomplete" because the first page of

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the questionnaire was missing. It also appears that is the case because the original

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administrative record filed with this court did not include the first page of Dr. Sookra's

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fibromyalgia RFC questionnaire. This court's record has since been supplemented with the

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complete questionnaire.

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Although there is nothing in this court's record reflecting Davis' subsequent

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correspondence with the Appeals Council, it appears that she must have notified the

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Appeals Council sometime between March 14 and March 16, 2011 regarding the missing

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page, because, as noted, on March 16, 2011, the Appeals Council gave Davis the

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opportunity to submit new evidence, and presumably, the missing page to Dr. Sookra's

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RFC questionnaire. However, Davis failed to do so, and instead filed the instant appeal.

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As noted, the Appeals Council subsequently denied review and the ALJ's decision became

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final.

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ISSUES

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At the outset, the court notes that Davis failed to organize her opening brief into

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manageable issues. She raises numerous issues, but unfortunately, her opening brief is

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not organized issue-by-issue. Instead, Davis frequently introduces an issue, fails to fully

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develop the issue, yet then discusses the same issue several pages later in the brief in

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combination with her discussion of another issue. With many of her issues, she has also
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failed to identify the specific ALJ error and the specific step in the ALJ's analysis at which

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the error occurred.

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Davis’ counsel is advised that to the extent he files future social security appeals

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before this court, he is required in his briefs to specifically set forth the issues, specify the

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particular ALJ error alleged, and address one issue at a time or they will be rejected and he

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will be ordered to rewrite them. Additionally, it is not appropriate to raise issues for the first

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time in footnotes as Davis’ counsel has done in this case.

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United States District Court
For the Northern District of California

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As a result, the court was required in this case to spend an inordinate amount of
time culling out and attempting to clarify the specific issues raised by Davis. Those issues
are as follows:

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(1)

Davis is entitled to remand and/or relief based on the Appeals Council’s
failure to consider in full her post-hearing physician statement and to
adequately consider LCSW Gutfeld’s post-hearing notes;

(2)

the ALJ erred at step two of his analysis when he failed to classify Davis’
headaches as a severe impairment;

(3)

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the ALJ erred in several respects in conjunction with his RFC assessment
including:

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(a)

his failure to credit Davis’ pain testimony;

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(b)

his failure to adequately consider Davis’ obesity; and

(c)

his failure to appropriately consider and/or credit Nurse Meyer’s
opinion(s) regarding Davis’ RFC;

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(4)

consideration of the new evidence before the Appeals Council
undermines the ALJ’s RFC determination and/or requires remand; and

(5)

the ALJ erred in using the Grids at step five to determine that there were jobs
Davis can perform when he should have consulted a vocational examiner
(“VE”).

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DISCUSSION
1.

Appeals Council’s March 14, 2011 Decision
Davis’ challenge to the Appeals Council’s decision appears to be two-fold. First, she

contends that the Appeals Council erred when it considered Dr. Sookra’s incomplete
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questionnaire. Second, she also appears to challenge the Appeals Council’s March 14,

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2011 decision on the merits, disputing the Appeals Council’s treatment of her “new”

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evidence from Dr. Sookra and LCSW Gutfeld.

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a.

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Davis suggests simply that a sentence six remand, one in which this court retains

Incomplete RFC Questionnaire

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jurisdiction, is appropriate based on the Appeals Council “administrative” error in failing to

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consider the first page of Dr. Sookra’s RFC questionnaire. She cites no authority in support

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of this request. The Commissioner does not respond regarding the alleged administrative

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error other than to contend that on the merits, consideration of Dr. Sookra’s full

United States District Court
For the Northern District of California

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questionnaire would not require reversal of the ALJ’s decision.
There is nothing in the record regarding with whom fault for the incomplete

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questionnaire lies. In arguing that she is entitled to remand based on the Appeals Council’s

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alleged administrative or procedural error, Davis ignores entirely the fact that the Appeals

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Council provided her an opportunity to re-submit the full document and was willing to re-

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open and reconsider its denial of her request for review - an opportunity that Davis failed to

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take. Instead, Davis chose simply to appeal the Appeals Council’s error to this court and

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did not resubmit any evidence or argument following the Appeals Council’s March 16, 2011

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decision notifying her that she could do so.

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Given Davis’ failure to avail herself of administrative procedures below, along with

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the fact that there is nothing in the record verifying that it was the Appeals Council’s

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administrative error as opposed to Davis’ error, the court DENIES relief under sentence six

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or otherwise based simply on the allegedly incomplete Appeals Council record.

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b.

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Additionally, Davis also appears to challenge the Appeals Council's treatment of her

Appeals Council’s Treatment of New Evidence

25 new evidence in its March 14, 2011 decision denying review.
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Regarding Dr. Sookra's questionnaire, Davis contends the Appeals Council was

27 mistaken in its characterization of Dr. Sookra as a non-treating physician and further argues
28 that the new evidence warranted reversal of the ALJ's decision. Likewise, Davis contends
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1 the Appeals Council did not adequately consider LCSW Gutfeld’s mental health progress
2 notes, and challenges the Appeals Council’s conclusion that the notes related to a new and
3 separate claim for disability.
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The Commissioner responds that the new evidence does not alter the ALJ’s decision

5 because Dr. Sookra’s questionnaire is less persuasive; the Appeals Council found it
6 repetitive of Nurse Meyer’s opinion; and Davis’ alleged mental impairment constitutes a new
7 claim for disability.
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Davis ignores the fact that an Appeals Council's denial of a request for review is a

9 non-final agency action not subject to judicial review. Taylor, 659 F.3d at 1231; see also
United States District Court
For the Northern District of California

10 Brewes, 2012 WL 2149465 at *3 (noting that a federal court “do[es] not have jurisdiction to
11 review a decision of the Appeals Council denying a request for review of an ALJ’s decision,
12 because the Appeals Council decision is a non-final agency action”). However, “when the
13 Appeals Council considers new evidence in deciding whether to review a decision of the
14 ALJ, that evidence becomes part of the administrative record, which the district court must
15 consider when reviewing the Commissioner’s final decision for substantial evidence.”
16 Brewes, 2012 WL 2149465 at *4.
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Based on the above, it is clear that this court may not review the Appeals Council’s

18 decision denying review in Davis’ case. However, this court is nevertheless required to
19 consider the new evidence submitted to the Appeals Council, which it does below.
20 2.

ALJ’s Classification of Davis’ Headaches as a Non-Severe Impairment

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As noted, at step two of the sequential analysis, the ALJ determined that Davis’

22 pseudo-tumor was a severe impairment and that her headaches constituted a non-severe
23 impairment. She now claims in a footnote in her brief that the ALJ erred in not classifying
24 her headaches as a severe impairment. See Opening Br. at 13. n.7.
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In her original disability report, Davis listed “brain tumor” or pseudo-tumor, “extreme

26 pressure behind [her] eyes,” and “severe headaches” as conditions that limited her ability to
27 do work. A.T. 138. Davis also explained she was taking Diamox for these symptoms, which
28 Dr. Sampson prescribed. Her treating physician, Dr. Betat confirmed this information in
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1 January 2008, when he noted Davis was taking Diamox and “being actively treated by Dr.
2 Sampson for pseudo tumor cerebri.” A.T. 262.
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In October 2008, Dr. Egan stated that Davis stopped taking Diamox because it no

4 longer worked for her. A.T. 390. However, Dr. Egan restarted Davis on Diamox and
5 prescribed Topamax for Davis’ headaches. A.T. 391. In April 2009, Dr. Egan terminated
6 Davis’ prescription for Diamox because her pseudo-tumor was in remission. A.T. 385.
7 Although Davis’ insurance carrier stopped covering Topamax for a brief period in 2009,
8 Davis eventually started to take it again and Dr. Egan noted, “her headache improved
9 tremendously.” A.T. 383-384. In January 2010, Dr. Egan again mentioned that Topamax
United States District Court
For the Northern District of California

10 helped Davis’ headaches and that her pseudo-tumor was in remission. A.T. 380.
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At Davis’ administrative hearing, she testified that she continued to have headaches,

12 but that Topamax “controlled it enough [so] that [she could] function through the day.” A.T.
13 53.
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Davis contends that the ALJ should have classified her headaches as a severe

15 impairment because they interfere with her daily living activities. She argues that although
16 she took Topamax to help control her headaches, she continued to have headaches and
17 related symptoms from her pseudo-tumor. Because the ALJ classified Davis’ pseudo-tumor
18 as a severe impairment, Davis asserts the ALJ erred when he did not similarly categorize
19 her headaches as a severe impairment.
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A claimant does not have a severe impairment if it is “merely ‘a slight abnormality (or

21 combination of slight abnormalities) that has no more than a minimal effect on the ability to
22 do basic work activities.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting
23 SSR 96-3p (1996)). Furthermore, “an ALJ may find that a claimant lacks a medically severe
24 impairment . . . only when his conclusion is ‘clearly established by medical evidence.’” Id. at
25 687 (quoting SSR 85-28 (1985)).
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In this case, there is substantial medical evidence in the record that Davis’

27 headaches are not a severe impairment and do not affect her ability to perform basic work
28 activities. Most notably, Dr. Egan reported more than once that Davis’ headaches improved
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1 while taking Topamax. A.T. 380, 383. Moreover, Davis’ admission that Topamax helped
2 her to function through the day supports the conclusion that her headaches did not limit her
3 ability to perform basic work activities.
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In addition, Davis misinterprets the significance and designation of a severe

5 impairment at step two of the sequential analysis. Davis argues her headaches interfere
6 with her “daily living” activities. However, a severe impairment is designated based on the
7 effects of the impairment on the claimant’s ability to perform “basic work” activities. 20
8 C.F.R. § 404.1520(c).
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Accordingly, the ALJ’s classification of Davis’ headaches as a non-severe impairment

United States District Court
For the Northern District of California

10 was supported by substantial medical evidence in the record. The court AFFIRMS the ALJ’s
11 decision on this issue.
12 3.

ALJ’s Residual Functional Capacity Determination

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a.

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Davis also argues that the ALJ erred when he rejected and/or discounted her

ALJ’s Failure to Credit Davis’ Pain Testimony

15 testimony regarding her subjective complaints.
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During the April 23, 2010 hearing, Davis testified regarding the pain she experienced

17 from her various conditions. Initially, Davis asserted she experienced pain as far back as
18 2002. Davis later explained that her symptoms gradually became worse over the years; she
19 was not sure about what was going on; and that she did not seek immediate medical
20 treatment for her pain because she did not have insurance. Furthermore, Davis claimed
21 that her pain caused her to constantly move and shift her position when seated. She
22 explained that when she was seated, she experienced pain in her hips, “all the way up [her]
23 spine,” and in her neck, limbs, and in her muscles. A.T. 58.
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As noted, the ALJ found that Davis had the RFC to perform at least sedentary work.

25 In conjunction with his RFC determination, the ALJ specifically referenced portions of Davis’
26 pain testimony. In addition, the ALJ discussed medical expert Dr. Bailey’s testimony that
27 Davis’ symptoms were possibly due to fibromyalgia. The ALJ also noted, “[o]bjective
28 medical findings have generally been reported as unremarkable, within normal limits, or
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1 mild.” A.T. 31.
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The ALJ then discussed the medical evidence in the record concerning Davis’

3 impairments. While describing treating physician Dr. Betat’s findings, the ALJ highlighted
4 that Davis “complained about ‘a lot of aches and pains in multiple area[s], but then
5 according to her previous history she has had some form of arthritis for more than fifteen
6 years.’” A.T. 32. Furthermore, the ALJ described that Dr. Betat “assessed that [Davis]
7 might be considered to have some form of fibromyalgia, but he did not think she was
8 necessarily permanently disabled.” A.T. 32.
9

The ALJ also described a report from consultative examiner Dr. Madani, as well as

United States District Court
For the Northern District of California

10 state medical consultants’ reports, which found that Davis could perform “light work.” A.T.
11 32. The ALJ modified Dr. Madani’s and the consultants’ RFC assessments to reflect a more
12 conservative RFC for Davis because he found that they did not adequately account for
13 Davis’ subjective complaints and obesity.
14

In addition, the ALJ referenced some of Dr. Sookra’s findings from April 2009, in

15 which he noted that Davis experienced pelvic pain. The ALJ opined that “[e]xcept for
16 possibly myocardial ischemia in August 2009, Dr. Sookra’s later examinations and clinical
17 findings were unremarkable.” A.T. 33. Furthermore, the ALJ observed that at some point
18 shortly thereafter, Nurse Meyer “treated the claimant from then on.” A.T. 33. The ALJ gave
19 little weight to one of Nurse Meyer’s assessments because it was inconsistent with Dr.
20 Madani’s evaluation, conflicted with other evidence in the record and according to medical
21 expert Dr. Bailey, it was based on subjective complaints and limitations.
22

The ALJ concluded his RFC determination, finding that Davis’ “medically

23 determinable impairments could reasonably be expected to cause some of the type[s] of
24 alleged symptoms;” but that her statements as to “the intensity, persistence and limiting
25 effects of [the] symptoms [was] not credible to the extent they [were] inconsistent with . . .
26 [Davis’] residual functional capacity assessment.” A.T. 33. The ALJ reasoned that “[t]he
27 nature and extent of treatment and activity limitations [were] not consistent with the alleged
28 degree of severity.” A.T. 33-34. Moreover, the ALJ found that Davis’ time spent as a
14

1 part-time housekeeper supported his conclusion that Davis could perform sedentary work.
2

Davis contends the ALJ failed to properly evaluate her subjective complaints. She

3 notes that the ALJ found her fibromyalgia to be a severe impairment, and cites a Ninth
4 Circuit case, which she asserts stands for the proposition that the ALJ was required to credit
5 her pain testimony as a matter of law because she suffered from fibromyalgia. See
6 Benecke v. Barnhart, 379 F.3d 587 (9th Cir. 2004). She argues that because her
7 fibromyalgia diagnosis was not rejected by any of her physicians, the ALJ's discrediting of
8 her subjective complaints required objective evidence, and that the ALJ failed to provide
9 clear and convincing reasons for rejecting her pain testimony.
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For the Northern District of California

10

An ALJ applies a two-step process to evaluate the credibility of a claimant’s pain

11 testimony or subjective complaints. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir.
12 2007). At the first step, an “ALJ must determine whether the claimant has presented
13 objective medical evidence of an underlying impairment ‘which could reasonably be
14 expected to produce the pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v.
15 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). The claimant “‘need not show that
16 her impairment could reasonably be expected to cause the severity of the symptom she has
17 alleged; she need only show that it could reasonably have caused some degree of the
18 symptom.’” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
19

At the second step, unless there is evidence of malingering, “‘the ALJ can reject the

20 claimant’s testimony about the severity of her symptoms only by offering specific, clear and
21 convincing reasons for doing so.’” Id. (quoting Smolen, 80 F.3d at 1281). Moreover,
22 “[g]eneral findings are insufficient; rather, the ALJ must identify what testimony is not
23 credible and what evidence undermines the claimant’s complaints.” Lester v. Chater, 81
24 F.3d 821, 834 (9th Cir. 1995) (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)).
25

When determining the claimant’s credibility, an ALJ may consider a variety of factors,

26 which include the “‘[claimant’s] reputation for truthfulness, inconsistencies either in [the
27 claimant’s] testimony or between [her] testimony and [her] conduct, [the claimant’s] daily
28 activities, [her] work record, and testimony from physicians and third parties concerning the
15

1 nature, severity, and effect of the symptoms of which [the claimant] complains.’” Thomas,
2 278 F.3d at 958-59 (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).
3 Furthermore, “[i]f the ALJ’s credibility finding is supported by substantial evidence in the
4 record, we may not engage in second-guessing.” Id. at 959 (citing Morgan v. Comm’r of
5 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)).
6

In this case, the ALJ clearly utilized the requisite two-step inquiry set forth above.

7 There is no dispute that the ALJ found that Davis satisfied the first step of the credibility
8 inquiry in concluding that Davis’ “medically determinable impairments could reasonably be
9 expected to cause some of the type[s] of alleged symptoms . . . .” A.T. 33. The issue
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For the Northern District of California

10 therefore is whether the ALJ provided clear and convincing reasons for discounting the
11 severity of Davis’ pain testimony.
12

In Benecke, the case relied on by Davis, the Ninth Circuit upheld the district court’s

13 determination that an ALJ erred in discrediting the claimant’s pain testimony based on her
14 fibromyalgia, as well as the opinions of her treating physicians. 379 F.3d at 593-94. The
15 court noted that “[f]ibromyalgia’s cause is unknown, there is no cure, and it is
16 poorly-understood within much of the medical community.” Id. at 590. Furthermore, “[t]he
17 disease is diagnosed entirely on the basis of patients’ reports of pain and other symptoms.”
18 Id. The Benecke court then explained that the ALJ in that case erred in rejecting the
19 claimant’s subjective complaints because “the ALJ relied largely on [the claimant’s] ability to
20 carry out certain routine tasks.” Id. at 594. This was despite the fact that the claimant’s
21 “daily activities [were] quite limited and carried out with difficulty.” Id.
22

By contrast, subsequently, in Burch v. Barnhart, the Ninth Circuit found that an ALJ

23 provided clear and convincing reasons for partially rejecting a claimant’s subjective
24 complaints based primarily on her back pain. 400 F.3d 676, 680-81 (9th Cir. 2005). The
25 Burch court explained that the ALJ based his credibility determination on objective medical
26 findings, the claimant’s daily living activities, inconsistent treatment, as well as the claimant’s
27 inability to actually seek treatment for other conditions. Id.
28

As for daily living activities, the Burch court explained that “if a claimant engages in
16

1 numerous daily activities involving skills that could be transferred to the workplace, the ALJ
2 may discredit the claimant’s allegations upon making specific findings relating to those
3 activities.” Id. at 681 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The court
4 found that “[a]lthough the evidence of [the claimant’s] daily activities may also admit [to] an
5 interpretation more favorable to [the claimant], the ALJ’s interpretation was rational, and
6 ‘[w]e must uphold the ALJ’s decision where the evidence is susceptible to more than one
7 rational interpretation.’” Id. at 680-81 (quoting Magallanes, 881 F.2d at 750).
8

In addition, the Burch court explained that the ALJ properly considered and pointed

9 out objective medical findings to discredit the claimant’s pain testimony. Id. at 681.
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For the Northern District of California

10 “Although lack of medical evidence cannot form the sole basis for discounting pain
11 testimony, it is a factor that the ALJ can consider in his credibility analysis.” Id.
12

Davis’ argument that her fibromyalgia diagnosis alone automatically warrants

13 acceptance of her subjective complaints lacks merit. Like Burch, the court finds that the ALJ
14 here gave clear and convincing reasons for discrediting Davis’ pain testimony. The ALJ
15 noted Davis’ daily living activities, specifically noting that Davis told a consultative examiner
16 she enjoyed playing with her dogs and performed housework, despite performing the work
17 at a slow pace. The ALJ also highlighted that Davis spent time as a part-time housekeeper
18 after her alleged onset date.
19

Additionally, like Burch, the ALJ also relied on the objective medical evidence

20 available in the record to discredit Davis’ subjective complaints. The ALJ’s RFC
21 determination noted that Davis’ “[o]bjective medical findings have generally been reported
22 as unremarkable, within normal limits, or mild.” A.T. 31. Furthermore, the ALJ noted a
23 “rheumatoid arthritis (RA) screen in February 2006 was negative.” A.T. 31. Likewise, he
24 noted that “[l]aboratory studies in July 2007 were negative for both ANA and a RA screen.”
25 A.T. 31. Thus, the ALJ found that objective medical findings did not support Davis’
26 subjective complaints.
27

The ALJ further considered Davis’ treatment for her various symptoms and

28 impairments. The ALJ noted Dr. Egan’s medical findings, in which the doctor found that
17

1 Davis’ pseudo-tumor went into remission after she took Diamox and her headaches
2 “improved tremendously” after she took Topamax. A.T. 33. This demonstrates the ALJ had
3 a basis for determining that the extent of Davis’ treatment was not consistent with the
4 severity of her subjective complaints. Additionally, the ALJ described treating physician Dr.
5 Betat’s findings who “assessed that [Davis] might be considered to have some form of
6 fibromyalgia, but he did not think she was necessarily permanently disabled.” A.T. 32. In
7 other words, Dr. Betat, one of Davis’ treating physicians, had his doubts that Davis’
8 fibromyalgia made her permanently disabled.
9

Finally, the ALJ’s modification of Dr. Madani’s overall assessment of Davis, as well as

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For the Northern District of California

10 those of the state medical consultants’ reports to a more conservative functional capacity
11 clearly demonstrates that the ALJ considered Davis’ subjective complaints and he took her
12 pain into account when concluding that she was still capable of at least sedentary work.
13

In conclusion, the ALJ provided clear and convincing reasons in his RFC

14 determination for discrediting Davis’ subjective complaints. Therefore, the court AFFIRMS
15 the ALJ on this issue.
16

b.

17

Again, without adequately pinpointing the specific ALJ error, Davis appears to assert

ALJ’s Consideration of Davis’ Obesity

18 that the ALJ failed to adequately consider her obesity in his RFC determination.
19

The ALJ found that Davis’ obesity constituted a severe impairment. At step three, the

20 ALJ made reference to Social Security Ruling 02-1p and the fact that he considered the
21 combined effects of Davis’ obesity on her ability to perform within a work setting.
22

Davis argues the ALJ’s consideration of her obesity was “cursory,” and she cites

23 Social Security Ruling 00-3p, for the proposition that “as with any other impairment, [an ALJ]
24 will explain how [he] reached [his] conclusions on whether obesity caused any physical or
25 mental limitations.” SSR 003-p (2000); see SSR 02-1p (2002) (superseding SSR 003-p).3
26
27
3

28

Although Social Security Rulings do not have the same weight as law, they are entitled
to some deference if they are congruent with Social Security Act regulations. Avenetti v.
Barnhart, 456 F.3d 1122, 1124 (9th Cir. 2006).
18

1

In contrast, the Commissioner argues “[o]besity may . . . enter into a multiple

2 impairment analysis, but only by dint of its impact upon the claimant’s musculoskeletal,
3 respiratory, or cardiovascular system.” Celaya v. Halter, 332 F.3d 1177, 1181 n.1 (9th Cir.
4 2003). Further, the Commissioner contends Davis has failed to specify what limitations her
5 obesity has caused, and also argues that Davis’ own testimony and prior work history
6 contradict her argument that her obesity prevents her from working.
7

An ALJ must consider obesity “as a factor contributing to [the claimant’s] disability.”

8 Hammock v. Bowen, 879 F.2d 498, 504 (9th Cir. 1989). When considering the claimant’s
9 obesity and RFC, “the ALJ’s assessment ‘must consider an individual’s maximum remaining
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For the Northern District of California

10 ability to do sustained work activities in an ordinary work setting on a regular and continuing
11 basis.’” Burch, 400 F.3d at 683 (quoting SSR 02-1). “A ‘regular and continuing basis’
12 means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 02-1p. “As
13 with other impairments, the ALJ should explain how he determined whether obesity caused
14 any physical or mental impairments.” Burch, 400 F.3d at 683 (citing SSR 02-1p).
15 Additionally, SSR 96-8p provides:
16
17
18
19

In assessing RFC, the adjudicator must consider only limitations and
restrictions imposed by all of an individual’s impairments, even those that are
not “severe.” While a “not severe” impairment(s) standing alone may not
significantly limit an individual’s ability to do basic work activities, it may –
when considered with limitations or restrictions due to other impairments – be
critical to the outcome of a claim.

20 Id. (quoting SSR 96-8p (1996)).
21

In Celaya v. Halter, the Ninth Circuit held that an ALJ should consider the effects of a

22 claimant’s obesity on the individual’s other impairments, health and ability to work. 332 F.3d
23 at 1182. In Celaya, the claimant was illiterate and pro se and she was found to have
24 diabetes and hypertension. Id. at 1179, 1182. The Ninth Circuit concluded the ALJ did not
25 adequately develop the record and failed to consider the effects of the claimant’s obesity on
26 the claimant’s other impairments. Id.
27

In Burch, however, the Ninth Circuit distinguished Celaya, and held that an ALJ

28 adequately considered a claimant’s obesity where there was nothing in the record to
19

1 suggest the claimant’s “obesity exacerbated her other impairments.” 400 F.3d at 682. The
2 Burch court found that the ALJ properly considered the claimant’s obesity as it related to the
3 ALJ’s RFC determination because the ALJ acknowledged physicians’ notes regarding the
4 claimant’s obesity, as well as possible effects of the obesity on the claimant’s back
5 problems. Id. at 684. Furthermore, the court noted neither the claimant, nor the evidence in
6 the record, presented “any functional limitations as a result of [the claimant’s] obesity that
7 the ALJ failed to consider.” Id.
8

Like Burch, the ALJ here adequately considered Davis’ obesity in his RFC

9 determination. Most importantly, Davis has failed to cite any medical evidence in the record
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For the Northern District of California

10 from her various physicians that her obesity exacerbated her other impairments or functional
11 limitations. Although Davis cites social security rulings for conditions and limitations that can
12 be affected by obesity, Davis has not established that her obesity exacerbated her
13 impairments or prevented her ability to work.
14

Moreover, while Davis testified that she has problems with her fine motor skills and

15 experienced fatigue, she did not testify that her obesity caused these limitations or
16 symptoms. In fact, Davis actually stated, “I may be big but I was a hard worker, believe it or
17 not. I worked hard doing a lot of stuff. I was very active.” A.T. 56. Her remaining testimony
18 similarly fails to suggest that her obesity had an effect on her functional limitations or ability
19 to do work.
20

Because the ALJ complied with SSR 02-1p and properly considered the effects of

21 Davis’ obesity on her ability to perform within a work setting, the court finds that the ALJ
22 properly considered Davis’ obesity in his RFC determination. This conclusion is also
23 supported by the ALJ’s recognition that Dr. Madani’s assessment and the state medical
24 consultants’ reports did not adequately take into account Davis’ subjective complaints and
25 obesity. For this reason, the court AFFIRMS the ALJ on this issue.
26

c.

27

Davis also contends the ALJ erred in his RFC determination because he failed to

ALJ’s Limited Treatment of Nurse Practitioner Meyer’s Opinion

28 afford the appropriate deference to Nurse Meyer’s assessment.
20

1

As part of his RFC determination, the ALJ discussed evidence in the record from

2 Nurse Meyer. Beginning in 2008, Nurse Meyer examined Davis on several occasions. A.T.
3 309-324, 337-357. In February 2010, she completed a medical source statement on her
4 own, which diagnosed Davis with degenerative arthritis and fibromyalgia. A.T. 369. In that
5 statement, she assessed Davis “to be capable of less than sedentary activity due to muscle
6 and joint pain, as well as fatigue.” A.T. 33.
7

As noted, the ALJ gave little weight to Nurse Meyer’s assessment of Davis’

8 limitations, reasoning that her assessment was “inconsistent with the assessment provided
9 by Dr. Madani and with the weight of the evidence.” A.T. 33. Moreover, the ALJ also stated
United States District Court
For the Northern District of California

10 that Dr. Bailey, who testified as a medical expert, found Nurse Meyer’s findings to be “based
11 on [Davis’] subjective symptoms and limitations.” A.T. 33.
12

Davis asserts Nurse Meyer’s evaluation should have been treated as that of an

13 acceptable medical source and that it was therefore entitled to the same amount of
14 deference as a treating physician.
15

The Commissioner counters that Davis is mistaken regarding the appropriate

16 treatment of Nurse Meyer’s opinion because Davis relies on Ninth Circuit case law that itself
17 cites a now non-existent regulation for the premise that a nurse practitioner can be treated
18 as an acceptable medical source if she is working with a physician. See Gomez v. Chater,
19 74 F.3d 967, 970-71 (9th Cir. 1996). Notwithstanding this fact, the Commissioner
20 nevertheless contends the ALJ did not err because he simply gave Nurse Meyer’s
21 assessment less weight based on other evidence in the record.
22

It is not entirely clear under current Ninth Circuit law whether a nurse practitioner

23 such as Nurse Meyer may be considered an “acceptable medical source.” Physician's
24 assistants, nurse practitioners, and chiropractors (among others) are medical professionals,
25 but they are not “acceptable medical sources” under the Social Security regulatory
26 framework. 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). The evaluations of a claimant by
27 these medical professionals are considered evidence from “other sources.” Id. The
28 distinction between “other sources” and an “acceptable medical source” is important
21

1 because only an “acceptable medical source” may be considered a “treating source.” See
2 20 C.F.R. §§ 404.1502, 416.902. The opinions of treating sources are generally entitled to
3 controlling weight or at least deference by adjudicators. See Lester, 81 F.3d at 830.
4

In addition to “acceptable medical sources,” an ALJ may nevertheless examine “other

5 sources to show the severity of [a claimant’s] impairment(s) and how it affects [her] ability to
6 work.” 20 C.F.R. § 404.1513(d). “Other sources” include other “medical sources” such as
7 evidence from nurse practitioners and physicians’ assistants. 20 C.F.R.
8 § 404.1513(d)(1).
9

In Gomez, the Ninth Circuit carved out an important exception to the general rule that

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For the Northern District of California

10 nurse practitioners constitute “other sources,” and are not “acceptable medical sources.” 74
11 F.3d at 971. In Gomez, the court held that the opinion of a nurse practitioner was properly
12 ascribed to the supervising physician and treated as an opinion from an “acceptable medical
13 source” because the record indicated that the nurse practitioner worked so closely under the
14 supervision of the physician that she became the agent of the physician. Id. Although the
15 Gomez court did not provide specific examples of the type of evidence that established this
16 agency relationship, it did indicate that the nurse practitioner consulted with the physician
17 regarding the claimant's treatment on numerous occasions. Id. The court also reasoned
18 that, pursuant to 20 C.F.R. § 416.913(a)(6), “[a] report of an interdisciplinary team that
19 contains the evaluation and signature of an acceptable medical source is also considered
20 acceptable medical evidence.” Id. The court concluded that a plain reading of paragraph
21 (a)(6) in conjunction with the definition of “other source” evidence “indicate[d] that a nurse
22 practitioner working in conjunction with a physician constitutes an acceptable medical
23 source, while a nurse practitioner working on his or her own does not.” Id.
24

Following the Ninth Circuit’s decision in Gomez, the regulation relied on by the court

25 in that case, 20 C.F.R. § 416.913(a)(6), was revised, and paragraph (a)(6) was removed,
26 along with any reference to an “interdisciplinary team” as an acceptable medical source. 65
27 Fed.Reg. 34950, 34952 (July 3, 2000). The agency explained that its revision was a
28 recognition that paragraph (a)(6) was “redundant and somewhat misleading” because
22

1 acceptable medical sources are individuals; thus, to be evidence from an “acceptable
2 medical source,” the report or evaluation would still have to be provided and signed by the
3 acceptable medical source regardless of whether that source was part of an interdisciplinary
4 team. See id. Ultimately, this clarified the agency's position that a report from an
5 interdisciplinary team member who is not an acceptable medical source is not transformed
6 into an evaluation from an acceptable medical source because of participation on the team.
7 Id. Rather, to be treated as evidence from an acceptable medical source, the evaluation
8 must be provided by an individual listed in the regulations as an acceptable medical source.
9 See 20 C.F.R. §§ 404.1513(a), 416.913(a).
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For the Northern District of California

10

District courts have split on the issue regarding whether Gomez is still good law

11 following the revisions to the regulation. See Vasquez v. Astrue, 2009 WL 939339 at *6 n.3
12 (E.D. Wash. 2009) (the holding in Gomez was essentially abrogated by the July 2000
13 revisions to § 416.913(a)); cf. Garcia v. Astrue, 2011 WL 3875483 (E.D. Cal. 2011); Nichols
14 v. Comm'r of Soc. Sec. Admin., 260 F.Supp.2d 1057, 1066–67 (D. Kan. 2003); Ramirez v.
15 Astrue, 2011 WL 1155682 at *4-5 (C.D. Cal. 2011). The majority of the district courts,
16 however, appear to be of the view that the July 2000 revision to § 416.913 did not undercut
17 the exception in Gomez, but it instead indicated how narrowly the exception should be
18 drawn. See Garcia, 2011 WL 3875483 at *11; Ramirez, 2011 WL 1155682 at *4–5; Nichols,
19 260 F.Supp.2d at 1066. These courts have held that following the revision, Gomez stands
20 for the proposition that “[o]nly in circumstances that indicate an agency relationship or close
21 supervision by an ‘acceptable medical source’ will evidence from an ‘other source’ be
22 ascribed to the supervising ‘acceptable medical source.’” Garcia, 2011 WL 3875483 at *13.
23

The majority view regarding Gomez’s continuing viability is persuasive, especially

24 since the Ninth Circuit recently cited to Gomez in Taylor, noting that the opinions of nurse
25 practitioners should be treated as “acceptable medical sources” as long as the nurse
26 practitioner is “working closely with, and under the supervision of, [a physician] . . . .” 659
27 F.3d at 1234 (citing Gomez, 74 F.3d at 971). Additionally, following Taylor, in Molina v.
28 Astrue, the Ninth Circuit recognized that Gomez relied on an outdated regulation, but chose
23

1 not to resolve whether Gomez remained good law, instead distinguishing it on the facts
2 because the physicians’ assistant at issue in Molina worked alone. 674 F.3d 1104, 1111 &
3 n.3 (9th Cir. 2012). The Ninth Circuit thus has not directly addressed the viability of its
4 decision in Gomez following the repeal of the regulation.
5

Nevertheless, assuming Gomez may still be considered good law, district courts have

6 interpreted its exception narrowly. See, e.g., Ramirez, 2011 WL 1155682 at *4 (physician's
7 co-signature on client-plan prepared by a social worker did not indicate that the social
8 worker was under close supervision of the physician in treating or in preparing the reports,
9 thus social worker's evaluation was not from an “acceptable medical source”); Vasquez,
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For the Northern District of California

10 2009 WL 939339 at *6 n.3 (physician’s assistant’s report “signed off” by a superior believed
11 to be a doctor did not constitute “acceptable medical source” opinion); Nichols, 260
12 F.Supp.2d at 1066–67 (distinguishing Gomez where physician signed the report of a nurse
13 practitioner but no evidence indicated that nurse practitioner consulted with the physician
14 during the course of the patient's treatment and concluding opinion was not from an
15 acceptable medical source).
16

Here, even assuming that Gomez remains good law, the facts of this case do not

17 support affording Nurse Meyer the status of an “acceptable medical source.” Although
18 Nurse Meyer worked at times with both Dr. Betat and Dr. Sookra, Nurse Meyer’s medical
19 source statement relied upon by Davis does not include either of their signatures. A.T. 36920 373. Moreover, the ALJ also observed that at some point after August 2009, it appeared
21 that Nurse Meyer “treated the claimant from then on.” A.T. 33. Gomez does not stand for
22 the proposition that any medical professional, who would not otherwise be considered an
23 “acceptable medical source,” is transformed into an “acceptable medical source” merely
24 because he or she is supervised to any degree by a physician. See Ramirez, 2011 WL
25 1155682 at *4-5. There is no evidence here that because of close supervision by other
26 treating physicians, Nurse Meyer was transformed from an “other source” to the agent of an
27 “acceptable medical source” by virtue of her participation on an interdisciplinary team and
28 close interaction with treating source physicians.
24

1

However, even if by some stretch Nurse Meyer could be considered an “acceptable

2 medical source” and not just an “other source,” the ALJ’s reasons for rejecting her opinions
3 in part were sufficient. In social security cases, “[i]n order to reject the testimony of a
4 medically acceptable treating source, the ALJ must provide specific, legitimate reasons
5 based on substantial evidence in the record.” Molina, 674 F.3d at 1111 (citing Valentine v.
6 Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). The ALJ found that Nurse
7 Meyer’s assessment was inconsistent with Dr. Madani’s evaluation and the weight of other
8 evidence. The ALJ was justified to conclude that Nurse Meyer’s opinion conflicted with
9 other evidence in the record.
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For the Northern District of California

10

Moreover, additional evidence, including the state medical consultants’ reports, which

11 found that Davis was capable of light work, also supports the ALJ’s treatment of Nurse
12 Meyer’s opinion. As previously mentioned, the ALJ modified Dr. Madani’s evaluation and
13 the state medical consultants’ reports to a more limited functional capacity because of Davis’
14 subjective complaints and obesity. This demonstrates that the ALJ did not discount Nurse
15 Meyer’s opinion solely in favor of Dr. Madani’s assessment. Likewise, it also demonstrates
16 that the ALJ did not base his decision entirely on Dr. Bailey’s opinion that Nurse Meyer’s
17 assessment was based on subjective complaints.
18

Accordingly, this court AFFIRMS the ALJ on this issue.

19 4.

New Evidence Before the Appeals Council

20

As noted above, when reviewing the Commissioner’s final decision for substantial

21 evidence, this court is required to consider the new evidence submitted to the Appeals
22 Council. Brewes, 2012 WL 2149465 at *4.
23

a.

24

Dr. Sookra’s post-hearing fibromyalgia RFC questionnaire is most significant as it

Dr. Sookra’s Post-Hearing Fibromyalgia RFC Questionnaire

25 relates to the ALJ’s RFC determination. In particular, the questionnaire most closely
26 pertains to the ALJ’s decision to discredit Davis’ subjective complaints and the ALJ’s
27 treatment of Nurse Meyer’s opinion.
28

Davis contends the questionnaire highlights her specific exertional and nonexertional
25

1 limitations, which the ALJ failed to consider. Moreover, Davis argues that case law and the
2 American College of Rheumatology’s criteria for fibromyalgia demonstrate that fibromyalgia
3 is based on subjective complaints, and requires an extended period of time to properly
4 evaluate. Because the questionnaire comes from a treating physician, Davis also argues
5 that it would change the ALJ’s RFC decision. Accordingly, she contends that the court
6 should remand the case so that the ALJ may consider the report.
7

Based on the applicable legal standards and other evidence in the record, Dr.

8 Sookra’s questionnaire does not warrant reversal of the ALJ’s RFC decision. As explained
9 in detail above, the ALJ provided clear and convincing reasons for discrediting Davis’
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For the Northern District of California

10 subjective complaints. The ALJ based his credibility determination on substantial evidence
11 in the record in concluding that Davis’ subjective complaints were unreliable. For example,
12 the ALJ referenced Davis’ daily activities and that she worked as a part-time housekeeper
13 after her alleged onset date. In addition, the ALJ considered objective medical evidence,
14 Davis’ treatment with medication, and the opinions from her physicians. Furthermore, the
15 ALJ actually modified Dr. Madani’s overall assessment of Davis, as well as state medical
16 consultants’ reports, to a more limited functional capacity. In light of these facts, Dr.
17 Sookra’s questionnaire would not undermine the ALJ’s credibility determination. Because
18 the ALJ gave clear and convincing reasons for discounting Davis’ pain testimony, which
19 were backed by substantial evidence in the record, Dr. Sookra’s post-hearing fibromyalgia
20 RFC questionnaire does not present a basis for reversing the ALJ’s RFC decision.
21

Moreover, for the reasons set forth above, the ALJ was justified in rejecting in part

22 Nurse Meyer’s opinion as inconsistent with other evidence in the record, including Dr.
23 Madani’s opinion. That same reasoning would apply to Dr. Sookra’s questionnaire.4
24 Because the ALJ found Nurse Meyer’s opinion to be inconsistent with the weight of the other
25
26
27
28

4

In many respects, Nurse Meyer’s questionnaire was actually more advantageous to
Davis than Dr. Sookra’s questionnaire. For example, while Nurse Meyer indicated Davis
“constantly” experienced pain, enough to interfere with her attention and concentration to
perform work tasks, Dr. Sookra indicated Davis “frequently” experienced pain. Likewise, Nurse
Meyer indicated Davis was incapable of even low stress jobs in terms of tolerable work stress,
while Dr. Sookra similarly indicated Davis was capable of low stress jobs.
26

1 evidence in the record, Dr. Sookra’s questionnaire would have had little impact given the
2 RFC evidence otherwise in the record.
3

In conclusion, it is unlikely Dr. Sookra’s assessment would alter the ALJ’s RFC

4 determination, and because this is the case, reversal or a remand on this basis is
5 unnecessary. However, this court is reversing and remanding with respect to the ALJ’s step
6 five decision as discussed below. Given that the questionnaire is now part of the record, the
7 ALJ is required to consider it in the context of the step five proceedings on remand.
8

b.

9

As set forth above, the Appeals Council stated that to the extent LCSW Gutfeld’s

LCSW Kevin Gutfeld’s Mental Health Progress Notes

United States District Court
For the Northern District of California

10 notes pertained to depression, they asserted "a new condition not alleged in the claim and
11 would not meet the durational requirement at the time of [the] decision.” A.T. 12. However,
12 as noted above, this court is without jurisdiction to review that determination since it was not
13 a final decision of the Commissioner.
14

Contrary to the Appeals Council’s determination, Davis contends that the progress

15 notes do not relate to a new claim for disability and that they actually concern her mental
16 and nonexertional limitations at the time of her original claim for disability. The
17 Commissioner counters that the progress notes indeed allege a new claim for disability.
18 Because they post-date the ALJ’s decision, the Commissioner argues Davis should file a
19 new disability application if she claims her depression warrants disability benefits.
20

Like Dr. Sookra’s post-hearing fibromyalgia RFC questionnaire, LCSW Gutfeld’s

21 mental health progress notes are most relevant to the ALJ’s RFC determination.
22

Davis’ claim for disability focused on her other impairments. This is evident in Davis’

23 original disability report where she did not specifically list that her anxiety or depression
24 limited her ability to do work. A.T. 137-145. Davis also noted that at the time that she did
25 not see anyone for mental health problems. A.T. 140.
26

Additionally, the ALJ highlighted in his RFC determination that in March 2008, a state

27 agency psychological consultant determined that Davis’ anxiety-related disorder was not
28 severe. A.T. 33, 228. The ALJ noted Davis had “no restriction in activities of daily living, no
27

1 difficulties in maintaining social functioning, no difficulties in maintaining concentration,
2 persistence, or pace, and that there had been no episodes of decompensation.” A.T. 33.
3 Based on this report, the ALJ was justified in his determination that Davis’ anxiety allowed
4 her to perform at least sedentary work.
5

Given that there is substantial evidence in the record that Davis did not satisfy her

6 burden in the first four steps of the sequential analysis to establish that she suffered from a
7 mental impairment, the court concludes that LCSW Gutfeld’s mental health progress notes
8 would not change the ALJ’s RFC determination.
9

However, because this court is reversing and remanding with respect to the ALJ’s

United States District Court
For the Northern District of California

10 step five decision as discussed below and given that the questionnaire is now part of the
11 record, the ALJ is required to consider it in the context of the step five proceedings on
12 remand.
13 5.

ALJ’s Application of the Medical-Vocational Guidelines and Failure to Seek

14

Vocational Expert Testimony

15

At step five of the sequential analysis, the ALJ held that there were a significant

16 number of jobs within the national economy that Davis can perform. The ALJ based his
17 decision on Davis' RFC, age, education, work experience and application of
18 Medical-Vocational Guidelines (the “Grids”). The ALJ relied on the Grids, and did not seek
19 vocational expert testimony to determine the types or number of jobs within the national
20 economy that Davis could perform.
21

Davis asserts that the ALJ erred at step five because he improperly relied on the

22 Grids and failed to seek vocational expert (“VE”) testimony. Davis contends she has
23 nonexertional limitations in addition to her exertional limitations, which she asserts precluded
24 the ALJ from relying solely on the Grids at step five of the sequential analysis. Davis argues
25 that both fibromyalgia and obesity - two of the impairments the ALJ found to be severe 26 cause nonexertional impairments. She also argues that her pain results in significant non27 exertional limitations, and notes evidence that she lacks fine motor skills and suffers from
28 vision-related problems.
28

1

The Commissioner counters that the ALJ found only exertional limitations - as

2 opposed to nonexertional limitations - and thus that the ALJ properly applied the Grids.
3

At step five, the burden shifts to the Social Security Administration to demonstrate

4 that there are other jobs that exist in significant numbers in the national economy which the
5 claimant could reasonably perform. 20 C.F.R. § 404.1560(b)(3); Tackett v. Apfel, 180 F.3d
6 1094, 1098 (9th Cir. 1999). The Commissioner can meet the burden of demonstrating
7 appropriate jobs in “significant numbers” in one of two ways. Tackett, 180 F.3d at 1101. The
8 ALJ can either hear the testimony of a vocational expert (“VE”) or can refer to the Medical9 Vocational Guidelines (commonly known as the “Grids”) found at 20 C.F.R. pt. 404, subpt.
United States District Court
For the Northern District of California

10 P, app. 2. Id.
11

The Grids are “a matrix system for handling claims that involve substantially uniform

12 levels of impairment.” Id.; see 20 C.F.R. pt. 404, subpt. P, app 2. They provide the
13 Commissioner an efficient means for assessing claims in a uniform and streamlined fashion.
14 Id. The efficiency of the Grids justifies the ALJ’s use thereof, as opposed to a VE, only
15 when the Grids “completely and accurately represent a claimant’s limitations.” Id. (emphasis
16 in original). “In other words, a claimant must be able to perform the full range of jobs in a
17 given category, i.e., sedentary work, light work, or medium work.” Id.
18

A “non-exertional impairment” is an impairment that limits the claimant’s ability to

19 work “without directly affecting his or her strength.” Desrosiers v. Secretary of Health and
20 Human Servs., 846 F.2d 573, 579 (9th Cir. 1988) (Pregerson, J., concurring) (internal
21 citations omitted). The Ninth Circuit has recognized that significant non-exertional
22 impairments may render reliance on the Grids inappropriate. Id. at 577. Significantly,
23 however, a mere allegation of a non-exertional limitation does not automatically preclude
24 application of the Grids, and should not allow a claimant to make an end run around the
25 more efficient Grids evaluation. Id. By the same token, however, the Desrosiers court
26 observed that “[a] non-exertional impairment, if sufficiently severe, may limit the claimant’s
27 functional capacity in ways not contemplated by the guidelines.” Id. In such a case, the
28 Grids are inapplicable. Id. The ALJ should first determine if a claimant’s non-exertional
29

1 limitations significantly limit the range of work permitted by his exertional limitations. Id.
2

The Ninth Circuit, in Bruton v. Massanari, articulated the appropriate scope of an

3 ALJ’s use of the Grids. 268 F.3d 824, 827-28 (9th Cir. 2001). In Bruton, a doctor’s medical
4 report stated that the claimant was “prophylactically precluded” from prolonged work at or
5 above the shoulder level. Id. at 828. The doctor’s medical report suggested that the
6 claimant’s shoulder impairments may have amounted to a non-exertional limitation and,
7 “[b]ecause Bruton may have that impairment,” the court concluded that the Commissioner
8 could not appropriately rely on the Grids, and should, instead, rely on the testimony of a VE.
9 Id. (emphasis added).
United States District Court
For the Northern District of California

10

Here, Davis is correct that the ALJ did not make specific findings regarding her non-

11 exertional limitations. However, contrary to the Commissioner’s position, this does not
12 mean that he found that Davis had none. To the contrary, obesity and fibromyalgia in and of
13 themselves constitute non-exertional impairments, and in this case, the ALJ found that they
14 were “severe” or significant. See Wilson v. Commissioner of Social Sec., 2008 WL 5268548
15 at *2 (9th Cir. 2008) (noting that “[b]ecause the limitations caused by the pain of fibromyalgia
16 and the fatigue of [chronic fatigue syndrome] are non-exertional limitations, vocational
17 expert testimony was required”); Lucy v. Chater, 113 F.3d 905 (8th Cir. 1997) (obesity is a
18 nonexertional impairment). Moreover, the mere possibility, rather than certainty, that Davis
19 suffers from a non-exertional limitation, is enough to overcome the interest in judicial
20 efficiency, and to mandate VE testimony on the topic. Bruton, 268 F.3d at 828. Notably, the
21 ALJ had a VE at the hearing, but chose to apply the Grids, rather than availing himself of the
22 VE’s testimony. In this case, the Grids did not “completely and accurately” represent Davis’
23 limitations, as required by Tackett for proper Grids use. 180 F.3d at 1101. Because Davis’
24 alleged non-exertional impairments could potentially interfere with her ability to perform the
25 full range of sedentary work, the ALJ was required to call upon the VE.
26

Based on this error, the court remands the case to the ALJ for further proceedings.

27 Specifically, the ALJ is required to call a vocational expert at step five to ascertain based
28 both on Davis’ exertional and non-exertional limitations, whether there are indeed jobs
30

1 available in the national economy for her. In doing so, the ALJ and VE should take into
2 account the new evidence previously submitted before the Appeals Council. This should
3 include the complete questionnaire from Dr. Sookra and LCSW Gutfeld’s progress notes.
4

Additionally, in conjunction with this step five argument, the court notes that Davis

5 suggests that the ALJ failed to consider several limiting non-severe impairments, including:
6 myocardial ischemia, poor exercise tolerance, coronary artery disease, near syncope,
7 osteoarthritis, bilateral severe papilledema, and pervasive pain. See Davis’ ALJ Pre8 Hearing Brief, A.T. 189-192. Additionally, Davis cites a function report previously before the
9 ALJ to assert that she suffers from sleep disruption, A.T. 159, limited cardiac ability, A.T.
United States District Court
For the Northern District of California

10 163, and an inability to finish what she starts, A.T. 163; and further cites to an evaluation by
11 Dr. Egan for the proposition that she has “significant issues with depression.” A.T. 382.
12 Finally, Davis contends she lacks fine motor skills based on her testimony given at the
13 administrative hearing.
14

Although such an argument would normally be directed at step three of the ALJ’s

15 analysis in conjunction with an argument that the ALJ failed to consider the combined
16 effects of all of these impairments, or would be directed at the ALJ’s RFC analysis, Davis
17 has not fashioned it as such. Instead, Davis seems to cite to all of these non-severe
18 impairments for the proposition that they should have been considered by a VE at step five
19 in determining what jobs she was capable of performing.
20

However, as is the case throughout her brief, Davis has failed to make clear what

21 exactly her challenge is with respect to this evidence. To the extent that Davis intended to
22 challenge the ALJ’s step three or RFC analysis, this court concludes that (a) Davis has
23 failed to properly develop the argument; and (b) alternatively, that there is nothing to
24 suggest that the ALJ failed to consider this laundry list of additional non-severe impairments.
25 Although the ALJ explicitly noted that he was considering the following non-severe
26 impairments - gastroesophageal reflux disease, grade I spondylolisthesis of L3 on L4, and
27 headaches - he further noted that he was considering “all impairments regardless of
28 severity.” A.T. 30. The ALJ was not required to list every single non-severe impairment that
31

1 he had considered, and this statement demonstrates that the ALJ was aware of the
2 requirement that he consider both Davis’ severe and non-severe impairments at step three
3 and with his RFC analysis. Accordingly, to the extent Davis challenges the ALJ’s treatment
4 of the above laundry list of impairments at a step other than step five in conjunction with her
5 arguments on this issue, this court affirms the ALJ’s decision.
6

On remand, though, the ALJ’s hypothetical questions posed to the VE at step five

7 must set out all the limitations and restrictions of the particular claimant. See Embrey v.
8 Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Accordingly, to the extent that Davis possesses
9 limitations based on the above list, those should be presented to the VE on remand. Id.
United States District Court
For the Northern District of California

10
11

CONCLUSION
For the foregoing reasons, the court GRANTS IN PART and DENIES IN PART Davis’

12 motion for summary judgment, and the court similarly GRANTS IN PART and DENIES IN
13 PART the Commissioner’s motion.
14

Specifically, the court DENIES Davis’ motion and affirms the Commissioner’s

15 decision as to all issues with the exception of Davis’ challenge to the ALJ’s step five analysis
16 and conclusion. As to that issue, the court concludes that the ALJ erred in relying on the
17 Grids and by failing to call a VE, and remands the case for further proceedings consistent
18 with the above directions pursuant to sentence four of 42 U.S.C. § 405(g).
19

This order fully adjudicates the motions listed at numbers twenty-seven and twenty-

20 eight of the clerk’s docket for this case. The clerk shall close the file.
21
22 IT IS SO ORDERED.
23
24 Dated: July 23, 2012
25
PHYLLIS J. HAMILTON
United States District Judge

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