Galkowski v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATION On Cross Motions For Summary Judgment (Dkt #s 15 , 17 ): Objections to R&R due by 5/10/2017. Replies due by 5/17/2017. Signed by Magistrate Judge Mitchell D. Dembin on 4/25/2017. (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KRISTINA LEA GALKOWSKI, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 Case No.: 16cv928-AJB-MDD REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT [ECF Nos. 15, 17] 17 18 Plaintiff Kristina Lea Galkowski (“Plaintiff”) filed this action pursuant 19 to 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of 20 the Social Security Administration (“Commissioner”) denying Plaintiff’s 21 application for disability and disability insurance benefits under Title II for 22 supplemental security income payments under Title XVI of the Social 23 Security Act. Plaintiff moves the Court for summary judgment reversing the 24 Commissioner and ordering an award of benefits, or, in the alternative, to 25 remand the case for further administrative proceedings. (ECF No. 15). 26 Defendant moved for summary judgment affirming the denial of benefits. 27 (ECF No. 17). 1 16cv928-AJB-MDD For the reasons expressed herein, the Court recommends that Plaintiff’s 1 2 motion be DENIED and Defendant’s motion be GRANTED. I. BACKGROUND 3 Plaintiff alleges that she became disabled on February 24, 2011, due to 4 5 degenerative disc disease, fibromyalgia, depression, fatigue, back pain, and 6 obesity. (A.R. 23).1 Plaintiff’s date of birth, September 9, 1980, categorizes 7 her as a younger person on the alleged disability onset date. 20 C.F.R. §§ 8 404.1563, 416.963; (A.R. 35). A. Procedural History 9 10 On July 18, 2012, Plaintiff filed an application for social security 11 disability insurance benefits and supplemental security income. (A.R. 20). 12 The claims were initially denied on October 31, 2012, and denied upon 13 reconsideration on March 25, 2013. (Id.). On August 4, 2014, Plaintiff 14 appeared at a hearing in San Diego, California before Administrative Law 15 Judge (“ALJ”) Nancy M. Stewart. (Id.). Plaintiff, impartial medical expert 16 Arthur Lorber, M.D. and impartial Vocational Expert (“VE”) Robin L. 17 Generaux testified. (Id.). On October 22, 2014, the ALJ issued a written decision finding Plaintiff 18 19 not disabled. (A.R. 21, 37). Plaintiff appealed, and the Appeals Council 20 declined to review the ALJ’s decision. (A.R. 1). Consequently, the ALJ’s 21 decision became the final decision of the Commissioner. (Id.). On April 18, 2016, Plaintiff filed a Complaint with this Court seeking 22 23 judicial review of the Commissioner’s decision. (ECF No. 1). On July 5, 2016, 24 Defendant answered and lodged the administrative record with the Court. 25 26 27 “A.R.” refers to the Administrative Record filed on May 15, 2016, and is located at ECF No. 9. 1 2 16cv928-AJB-MDD 1 (ECF Nos. 9, 10). On September 1, 2016, Plaintiff moved for summary 2 judgment. (ECF No. 15). On November 4, 2016, the Commissioner cross- 3 moved for summary judgment and responded in opposition to Plaintiff’s 4 motion. (ECF Nos. 17, 18). Lastly, on November 18, 2016, Plaintiff replied to 5 the Commissioner’s response. (ECF No. 18). II. DISCUSSION 6 7 A. Legal Standard 8 The supplemental security income program provides benefits to 9 disabled persons without substantial resources and little income. 42 U.S.C. § 10 1383. To qualify, a claimant must establish an inability to engage in 11 “substantial gainful activity” because of a “medically determinable physical 12 or mental impairment” that “has lasted or can be expected to last for a 13 continuous period of not less than 12 months.” 42 U.S.C. § 1383(a)(3)(A). 14 The disabling impairment must be so severe that, considering age, education, 15 and work experience, the claimant cannot engage in any kind of substantial 16 gainful work that exists in the national economy. 42 U.S.C. § 1383(a)(3)(B). 17 The Commissioner makes this assessment through a process of up to 18 five-steps. First, the claimant must not be engaged in substantial, gainful 19 activity. 20 C.F.R. § 416.920(b). Second, the claimant must have a “severe” 20 impairment. 20 C.F.R. § 416.920(c). Third, the medical evidence of the 21 claimant’s impairment is compared to a list of impairments that are 22 presumed severe enough to preclude work. 20 C.F.R. § 416.920(d). If the 23 claimant’s impairment meets or is equivalent to the requirements for one of 24 the listed impairments, benefits are awarded. Id. If the claimant’s 25 impairment does not meet or is not equivalent to the requirements of a listed 26 impairment, the analysis continues to a fourth and possibly fifth step and 27 considers the claimant’s residual functional capacity. At the fourth step, the 3 16cv928-AJB-MDD 1 claimant’s relevant work history is considered along with the claimant’s 2 residual functional capacity. If the claimant can perform the claimant’s past 3 relevant work, benefits are denied. 20 C.F.R. § 416.920(e). At the fifth step, 4 if the claimant is found unable to perform the claimant’s past relevant work, 5 the issue is whether the claimant can perform any other work that exists in 6 the national economy, considering the claimant’s age, education, work 7 experience, and residual functional capacity. If the claimant cannot do other 8 work that exists in the national economy, benefits are awarded. 20 C.F.R. § 9 416.920(f). 10 Section 1383(c)(3) of the Social Security Act, through Section 405(g) of 11 the Act, allows unsuccessful applicants to seek judicial review of a final 12 agency decision of the Commissioner. See 42 U.S.C. §§ 1383(c)(3), 405(g). 13 The scope of judicial review is limited and the Commissioner’s denial of 14 benefits “will be disturbed only if it is not supported by substantial evidence 15 or is based on legal error.” Brawner v. Secretary of Health & Human 16 Services, 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 17 F.2d 528, 529 (9th Cir. 1986)). 18 Substantial evidence means “more than a mere scintilla” but less than a 19 preponderance. Sandqathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “[I]t 20 is such relevant evidence as a reasonable mind might accept as adequate to 21 support a conclusion.” Id. (quoting Andrews v. Shalala 53 F.3d 1035, 1039 22 (9th Cir. 1995)). The court must consider the record as a whole, weighing 23 both the evidence that supports and detracts from the Commissioner’s 24 conclusions. Desrosiers v. Secretary of Health & Human Services, 846 F.2d 25 573, 576 (9th Cir. 1988). If the evidence supports more than one rational 26 interpretation, the court must uphold the ALJ’s decision. Allen v. Heckler, 27 749 F.2d 577, 579 (9th Cir. 1984). When the evidence is inconclusive, 4 16cv928-AJB-MDD 1 “questions of credibility and resolution of conflicts in the testimony are 2 functions solely of the Secretary.” Sample v. Schweiker, 694 F.2d 639, 642 3 (9th Cir. 1982). 4 The ALJ has a special duty in social security cases to fully and fairly 5 develop the record in order to make an informed decision on a claimant’s 6 entitlement to disability benefits. DeLorme v. Sullivan, 924 F.2d 841, 849 7 (9th Cir. 1991). Because disability hearings are not adversarial in nature, 8 the ALJ must “inform himself [or herself] about the facts relevant to his 9 decision,” even if the claimant is represented by counsel. Id. (quoting Heckler 10 v. Campbell, 461 U.S. 458, 471 n.1 (1983)). 11 Even if a reviewing court finds that substantial evidence supports the 12 ALJ’s conclusions, the court must set aside the decision if the ALJ failed to 13 apply the proper legal standards in weighing the evidence and reaching his or 14 her decision. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978). Section 15 405(g) permits a court to enter a judgment affirming, modifying or reversing 16 the Commissioner’s decision. 42 U.S. C. § 405(g). The reviewing court may 17 also remand the matter to the Social Security Administration for further 18 proceedings. Id. 19 B. The ALJ’s Decision 20 The ALJ concluded Plaintiff was not disabled, as defined in the Social 21 Security Act, from February 24, 2011, through the date of the ALJ’s decision, 22 October 22, 2014. (A.R. 20). 23 The ALJ found Plaintiff has the following severe impairments: 24 degenerative disc disease, obesity, psychotic disorder and depressive disorder. 25 (A.R. 23). The ALJ determined Plaintiff did not have an impairment or 26 combination of impairments meeting or medically equivalent to the severity 27 of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 5 16cv928-AJB-MDD 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 2 416.926). (A.R. 24). Specifically, the ALJ found that “[n]o treating or 3 examining physician has mentioned findings equivalent in severity to the 4 criteria or any listed impairment, nor the does the evidence show medical 5 findings that are the same or equivalent to those of any listed impairment.” 6 (Id.). The ALJ considered listings 1.04, 12.03, and 12.04. (Id.). 7 The ALJ also found that Plaintiff had mild restrictions in daily living 8 activities, mild difficulties in social functioning, moderate difficulties with 9 regard to concentration, persistence or pace and experienced no episodes of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 decompensation of extended duration. (A.R. 24-25). The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to: [P]erform sedentary work . . . except [Plaintiff] can lift, carry, push or pull no more than 10 pounds, stand or walk no more than 2 hours, total, in an 8-hour workday, and for no more than 30 minutes at a time, sit for 6 hours in an 8-hour workday, with the ability to stand and stretch not more than 10 percent of the day; occasionally climb ramps and stairs, balance, stoop, kneel, and crouch, never climb ladders, ropes, or scaffolds, crawl, operate fast or dangerous machinery or drive commercial vehicles; never work in environments involving exposure to unprotected heights, or concentrated exposure to vibration; can perform no more than unskilled work, involving simple, repetitive tasks, and cannot perform fast paced work. (A.R. 26). After reviewing the record and Plaintiff’s testimony, the ALJ found that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” (A.R. 28). The ALJ also found that the “record indicates that [Plaintiff’s] severe mental impairments give rise to significant symptoms, which somewhat reduce her functional capacity, but also that these symptoms are not as severe as alleged.” (A.R. 32). 6 16cv928-AJB-MDD 1 Relying on the record and testimony of VE Generaux, the ALJ found 2 that Plaintiff is unable to perform any past relevant work. (A.R. 35). The 3 ALJ stated that the record reflects that Plaintiff worked as a general office 4 clerk, order clerk, security guard, receptionist and ticket seller. (Id.). VE 5 Generaux testified that each of these positions required an exertional level 6 that Plaintiff could not perform at her current functional capacity. (Id.). 7 The ALJ found that there are jobs that exist in significant numbers in 8 the national economy that Plaintiff can perform. (A.R. 35). In determining 9 this, the ALJ considered Plaintiff’s RFC, that Plaintiff has at least a high 10 school education, can communicate in English, is a “younger individual” and 11 that transferable job skills are immaterial. (Id.). Based on this information, 12 VE Generaux testified that Plaintiff can perform the occupations such as 13 information clerk, mail clerk or charge account clerk. (A.R. 36). Accordingly, 14 the ALJ found Plaintiff was not disabled from February 24, 2011 to the date 15 of the ALJ’s decision on October 22, 2014. (A.R. 36-37). 16 17 In determining that Plaintiff is not disabled, the ALJ noted the following to be of particular relevance: 18 1. Plaintiff’s Physical Impairments 19 In considering Plaintiff’s underlying medically determinable physical 20 impairments, the ALJ specifically referred to: (a) Plaintiff’s own reports and 21 testimony; (b) the medical record from 2011 until 2014; (c) the lay opinions of 22 Robert Powers, Jr., Plaintiff’s boyfriend, and Teresa Michelle Browning, 23 Plaintiff’s longtime friend; (d) Medical Expert Arthur Lorber, M.D.’s 24 testimony; and (e) State consultative examiner Frederick W. Close, M.D.’s 25 opinion. 26 27 a. Plaintiff’s Reports and Testimony Plaintiff’s August 13, 2012, function report alleged that her 7 16cv928-AJB-MDD 1 impairments limited her ability to lift, walk, squat, sit, bend, kneel, stand, 2 reach, and climb stairs. (A.R. 26, 288). She explained that she could walk for 3 a quarter of a mile at a time, but could not walk longer than fifteen minutes 4 and had to rest for ten to fifteen minutes before resuming. (A.R. 26, 288, 5 290). Plaintiff reported she could lift less than ten pounds, could not squat, 6 bend, kneel, reach above her head, stand for more than fifteen minutes, or sit 7 for more than one hour and could climb two flights of stairs at most. (A.R. 8 26-27, 290). She indicated that she could do light cleaning (with frequent 9 breaks), read and use the computer, could shop in stores about once a week, 10 handle money, could finish what she started, could follow written 11 instructions very well and get along with authority figures. (A.R. 34, 283-90). 12 However, Plaintiff said that she required several breaks to complete chores. 13 (A.R. 27, 288, 290). Plaintiff also indicated that stress increased her pain 14 levels and her back and nerve pain roused her frequently from sleep. (A.R. 15 27, 284). Socially, Plaintiff stated that she attended one party every couple of 16 months and spent time with friends and family once a week every other 17 week. (A.R. 34, 288). Overall, Plaintiff reported that her impairments 18 affected her ability to cook, do housework, leave the house, and negatively 19 impacted her social life. (A.R. 27, 248-86, 288). 20 Plaintiff’s initial disability report from July 31, 2012, reports that 21 Plaintiff was taking Ativan, Flexeril, gabapentin, Norco, Prozac and 22 trazodone. (A.R. 28, 257). Plaintiff reported taking Flexeril, gabapentin, 23 Norco, Prozac, meloxicam and Robaxin in her May 3, 2013, hearing-level 24 disability report. (A.R. 28, 314). At the hearing, Plaintiff testified that she 25 was taking Norco, Mobic and gabapentin. (A.R. 28). Plaintiff said that 26 gabapentin contributed to her fatigue, caused her to forget words and names, 27 slur words, weave while walking, and caused short-term memory loss. (Id.). 8 16cv928-AJB-MDD 1 At the hearing, Plaintiff testified that her physical impairments have 2 been treated for the most part with medication and that her doctors would 3 consider surgery if the medication stopped working. (A.R. 27). She also 4 stated that physical therapy did not completely alleviate all of her pain and 5 doctors never recommended epidurals or use of a back-brace or cane. (Id.). 6 While Plaintiff was urged to lose weight, she testified that she was not 7 generally physically capable of losing weight. (Id.). 8 9 Plaintiff’s hearing-level disability report from May 3, 2013, reports increased pain and fatigue. (A.R. 27, 308). Plaintiff reported involuntary 10 muscle twitches, further disc degeneration in her cervical spine and 11 deteriorated sleep patterns, decreasing the length of time she can stand. 12 (A.R. 27, 308). As a result, Plaintiff reported an inability to do laundry on 13 her own, drive longer than ten miles or at night, care for her grandmother, 14 shop by herself, bathe on a daily basis and can only cook using the microwave 15 or oven. (A.R. 27, 308). At the hearing, Plaintiff testified that she spends a 16 lot of time on the couch, could cook food in the microwave or oven, but could 17 not stand at a stove, did not bathe unless necessary because standing in the 18 shower is too painful and she cannot sit in the tub, and that she generally did 19 not perform household chores, but washes dishes when there are no clean 20 ones. (A.R. 27). 21 At the hearing, the ALJ observed that Plaintiff exhibited discomfort 22 and asked to stand on several occasions. (Id.). W. Davis, the field office 23 employee who helped Plaintiff complete her initial disability report, noted 24 that Plaintiff squirmed in her seat and complained of pain after the 25 interview. (A.R. 31, 253). 26 b. 27 2011-2014 Medical Record The ALJ recognized that the medical record supports a finding that 9 16cv928-AJB-MDD 1 Plaintiff’s obesity and degenerative disc disease give rise to significant 2 symptoms requiring strong medication and frequent treatment from January 3 of 2011 to June of 2014. (A.R. 28). 4 On January 7, 2011, Mark Alan Harris, M.D. found that Plaintiff was 5 suffering from chronic axial lower back pain with a strong central 6 sensitization component. (A.R. 28, 628). In May of 2011, Patrick Charles 7 Watson, D.O. saw Plaintiff for a pain consultation. Plaintiff indicated that 8 her pain was worst in her lower back, but had pain in other areas as well. 9 (A.R. 28, 648). Dr. Watson observed that the medication Plaintiff was taking, 10 an oral opioid Norco 10/325mg and ibuprofen 1600mf, was only mildly 11 effective and gave Plaintiff only little improvement with quality of life and 12 function. (A.R. 28, 648). Nonetheless, Dr. Watson observed that Plaintiff 13 continued to live a semi-active lifestyle. (A.R. 28, 651). Dr. Watson also 14 advised Plaintiff that she should be evaluated for a comprehensive pain 15 management program because she had been over-relying on her opioid 16 medication. (A.R. 28, 649). 17 Throughout 2011, several doctors noted Plaintiff’s over-reliance on 18 opioids. Dr. Chung found that Plaintiff used 30 days of Norco in 17 days and 19 Kay Tuo Huber, M.D., found that Plaintiff had been taking 4 or 5 tabs per 20 day, instead of her usual 3 tabs per day. (A.R. 29, 531, 529). In October of 21 2011, Dr. Huber reported that Plaintiff had been taking 8 tabs per day prior 22 to deescalating to just 2 tabs per day. (A.R. 29, 739). The ALJ noted that 23 “this overreliance seems to have ended, and the record subsequently shows a 24 more dedicated effort on the part of [Plaintiff] to pursue alternatives to pain 25 medication.” (A.R. 29). 26 27 Plaintiff underwent an initial pain psychologist assessment with Soyeon Karen Chung, Ph.D. in May of 2011. (A.R. 28). Dr. Chung found that 10 16cv928-AJB-MDD 1 Plaintiff was fairly to poorly coping with her chronic pain and indicated that 2 Plaintiff’s depression impaired her ability to engage in adaptive coping. (A.R. 3 28-29, 549). In mid-August, Plaintiff told Dr. Harris that she tried to return 4 to work, but was unable to tolerate sitting, standing or walking for a 5 prolonged time. (A.R. 29, 680). On September 18, 2011, Plaintiff saw 6 William Anthony Bourque, N.P. in the emergency room, Plaintiff complained 7 of acute pain to the slightest light touch on the lower para lumbar region 8 bilaterally. (A.R. 29, 531). Mr. Borque noted that Plaintiff could only 9 complete a bilateral straight leg raising test to 20 degrees due to pain. (A.R. 10 29, 531). In October of 2011, Dr. Harris noted that Plaintiff exhibited pain 11 during his palpation and range of motion tests. (A.R. 29, 680). In December 12 of 2011, Plaintiff reported suffering from constant back pain and leg 13 weakness and indicated that acupuncture and acupressure did not help. 14 (A.R. 29, 457, 465). 15 In January of 2012, Dr. Huber observed that Plaintiff was experiencing 16 significant side effects from tapering off of Norco. (A.R. 29, 739-40). An MRI 17 of Plaintiff’s lumbar spine from January of 2012 showed degenerative disc 18 disease at L4-5 and showed no significant changes since Plaintiff’s January 19 2010 MRI. (A.R. 29, 388-89, 427). Plaintiff’s physical condition began to 20 improve in February 2012. (A.R. 29). Plaintiff told Dr. Huber she could walk 21 and stand and wanted to go back to full time work. (A.R. 29, 788). In March 22 of 2012, Plaintiff indicated she had gone back to work, but was unable to 23 bend or lift due to back pain. (A.R. 29-30, 788). In April of 2012, Plaintiff 24 saw Dr. Watson and complained of achy, sharp, and burning pain. (A.R. 30, 25 803). 26 27 In July of 2012, Plaintiff reported that she was hospitalized for mental symptoms caused by her medications and was experiencing chronic fatigue, 11 16cv928-AJB-MDD 1 rendering her unable to work. (A.R. 30, 380, 858). Dr. Huber told Plaintiff 2 that losing weight would cure her problem and she should keep active and 3 exercise. (A.R. 30, 859). In August of 2012, Plaintiff reported that time off 4 from work helped her both physically and mentally, that she had been 5 exercising regularly in the pool and that she had not used Norco in over two 6 weeks. (A.R. 30, 1096). In November of 2012, Plaintiff reported worsening 7 pain when she tried to return to work and that she was hospitalized twice for 8 back pain in November and December and once for flank pain suspected to 9 arise from musculoskeletal causes. (A.R. 30, 1055, 1066, 1088, 1094). 10 In March of 2013, Plaintiff told Dr. Pack that her symptoms were fairly 11 stable on her current medications but worsened with increased activity. 12 (A.R. 30, 1053). In March of 2014, Plaintiff stated that her pain was “good 13 now” and in June of 2014 she reported making an effort to lose weight and 14 that her pain was mostly better. (A.R. 30, 1053, 1166, 1171). 15 16 c. Lay Opinions In Robert Powers, Jr.’s (Plaintiff’s boyfriend) August 14, 2012, third 17 party function report, he reported that Plaintiff’s impairments limited her 18 ability to lift, walk, squat, sit, bend, kneel, stand, climb stairs and complete 19 tasks. (A.R. 31, 280). Additionally, Mr. Powers stated that Plaintiff could not 20 kneel, could only climb two flights of stairs at most, and that her ability to 21 complete tasks is dependent on her current pain level. (A.R. 31, 282). He 22 reported that Plaintiff sometimes slept sitting up and got up in the middle of 23 the night. (A.R. 31, 276). The ALJ gave only partial weight to Mr. Powers 24 because he did not know Plaintiff prior to the alleged onset of her 25 impairments. (A.R. 31). The ALJ explained that this indicates that Mr. 26 Powers has less than a thorough, longitudinal view of her condition. 27 Teresa Michelle Browning, a longtime friend of Plaintiff, indicated in 12 16cv928-AJB-MDD 1 her July 2014 letter that before the onset of Plaintiff’s impairments, Plaintiff 2 was hardworking, energetic, social, always happy, very strong physically and 3 never complained about ailments. (A.R. 31, 1114). After the onset of her 4 impairments, Ms. Browning stated that Plaintiff was depressed, physically 5 weak, lethargic and constantly in pain. (A.R. 31, 1114). Additionally, Ms. 6 Browning reported that Plaintiff spent less time socializing and did not seem 7 able to walk, sit, or stand for lengthy periods of time. (A.R. 31, 1114). Ms. 8 Browning opined that Plaintiff’s attempts to work caused her health to 9 decline. (A.R. 31, 1114). The ALJ gave partial weight to Ms. Browning’s 10 opinion because she did not regularly see Plaintiff between 2010 and 2013 11 and the record contradicts some of her opinion. (A.R. 31). For example, Ms. 12 Browning opined that Plaintiff’s medication was not helping her when the 13 record and Plaintiff contradict that statement. (Id.). 14 15 d. Dr. Lorber The ALJ gave some weight to Arthur Lorber, M.D., the testifying 16 medical expert. (A.R. 31). Dr. Lorber testified that Plaintiff could 17 occasionally lift 20 pounds; frequently lift 10 pounds, occasionally crouch, 18 stoop, or kneel; could never crawl, climb ladders, scaffolds, or ropes, or work 19 at unprotected heights or in environments with high vibrations; could 20 occasionally work around moving machinery, ascend and descend ramps and 21 operate foot pedals; could stand and walk for two hours in an eight hour 22 workday for thirty minutes at a time; sit for six hours in a day for thirty 23 minutes at a time; and at the end of thirty minutes of sitting could stand or 24 walk for thirty minutes. (A.R. 31-32). The ALJ found that the record does 25 not support Dr. Lorber’s opinion that Plaintiff can lift at the light exertional 26 capacity, sit for only thirty minutes at a time, or that she requires as specific 27 a sit/stand option as suggested. (A.R. 32). Additionally, the ALJ found that 13 16cv928-AJB-MDD 1 the record does not suggest that Plaintiff can work around moving 2 machinery. (Id.). e. 3 4 Dr. Close Dr. Frederick W. Close, the State’s orthopedic consultative examiner, 5 examined Plaintiff on October 12, 2012 and noted that Plaintiff exhibited 6 increased lumbar lordosis, stood and walked with a normal gait and exhibited 7 normal heel and toe walking. (A.R. 30, 1010). A cervical spine examination 8 revealed no tenderness on palpation and no spasm, but the dorsolumbar 9 spine examination revealed tenderness in the right lumbar spine with some 10 spasm. (A.R. 30, 1010-11). Dr. Close found Plaintiff’s hip flexion limited due 11 to her obesity, but otherwise normal and her straight leg raising and 12 shoulder impingement tests normal. (A.R. 30, 1011). Dr. Close also found 13 Plaintiff’s left elbow was extremely tender and that Plaintiff started crying 14 when he attempted to check a biceps reflex on the left elbow. (A.R. 30, 1011). 15 He also noted that Plaintiff did not exhibit enough trigger points to qualify 16 for an actual diagnosis of fibromyalgia and diagnosed her with polymyalgia. 17 (A.R. 30, 1011). Dr. Close opined that Plaintiff could sit, stand and walk for 18 at least six hours in an eight hour work day with normal rest breaks, lift and 19 carry fifty pounds occasionally and twenty-five pounds frequently and had no 20 other limitations. (A.R. 32). The ALJ gave little weight to Dr. Close because 21 the record suggests that Plaintiff’s functional capacity is subject to “far 22 greater limitations.” (Id.). 23 2. Plaintiff’s Mental Impairments 24 In considering Plaintiff’s underlying medically determinable mental 25 impairments, the ALJ specifically referred to: (a) the medical record from 26 2011 until 2014; (b) State psychiatric consultative examiner Gregory M. 27 Nicholson, M.D.’s opinion; (c) Plaintiff’s statements; and (d) Mr. Cannon’s 14 16cv928-AJB-MDD 1 statements. a. 2 3 2011-2014 Medical Record Plaintiff was suffering from serious mental health symptoms when she 4 was hospitalized for suicidal ideation between February 23, 2011 and 5 February 26, 2011. (A.R. 32-33, 350). Her global assessment of functioning 6 (GAF) score was between 35 and 40, which indicated either some impairment 7 in reality testing or communication, or major impairment in several areas, 8 such as work, school, family relations, judgment, thinking or mood. (A.R. 32, 9 1116). Plaintiff told a mental care provider she had not actually had suicidal 10 ideation prior to hospitalization. (A.R. 32, 1195). Rather, Plaintiff explained 11 that her roommates misinterpreted a comment she made about her inability 12 to fall asleep and “caused” Plaintiff to be hospitalized. (A.R. 32, 1195). While 13 Plaintiff stated she had not been medicated for mental issues prior to her 14 hospitalization, the record indicates that Plaintiff abruptly stopped taking 15 Cymbalta, a mental health medication, shortly before hospitalization. (A.R. 16 32, 350). 17 In March of 2011, Plaintiff reported that she was taking Prozac and 18 trazodone for her mental impairments, which she was still taking as of July 19 of 2014. (A.R. 33, 637, 1176). The ALJ noted that the consistency in 20 medication indicates its success in stabilizing Plaintiff’s mental impairments 21 and that Plaintiff has rarely sought treatment for mental issues unrelated to 22 her pain management regimen. (A.R. 33, 450, 465, 547). 23 In March of 2012, after Plaintiff temporarily returned to work, she 24 complained to Dr. Huber that she was under a lot of stress, was suffering 25 from anxiety and insomnia and that she had a two-hour panic attack at work. 26 (A.R. 34, 404). 27 Lisa Ho, Psy.D., Plaintiff’s treating psychologist, reported that in March 15 16cv928-AJB-MDD 1 of 2014, Plaintiff suffered from mild depression. (A.R. 33, 1217). In May of 2 2014, Plaintiff told Dr. Ho that things were “fabulous” with her friends, 3 boyfriend, car, sleep, etc., that she is on an “even keel” and didn’t feel she 4 needed therapy. (A.R. 33, 1204). In June of 2014, Plaintiff indicated that her 5 mood was tied to her physical impairments and described her depression as 6 “situational.” (A.R. 33, 1166, 1175). 7 8 9 b. Dr. Nicholson On October 9, 2012, Plaintiff told Gregory M. Nicholson, M.D., the State’s psychiatric consultative examiner that she had visual hallucinations 10 that looked like sparkling lights or movement out of the corner of her eye, 11 that she suffered from insomnia, fluctuating appetite, decreased energy, had 12 trouble concentrating and had a decreased interest in normal activities, but 13 denied experiencing suicidal ideation or symptoms of anxiety disorders or 14 mania. (A.R. 33, 1001). Dr. Nicholson noted that Plaintiff’s appearance, 15 attitude and behavior were favorable and that she was coherent and 16 organized without tangential or loose associations. (A.R. 33, 1002). He 17 indicated that Plaintiff’s speech was normally and clearly articulated, that 18 she was alert and oriented to time, place, person and purpose and that she 19 appeared to be of average intelligence. (A.R. 33, 1003). Dr. Nicholson did 20 find that Plaintiff’s mood was depressed and that her affect was tearful and 21 dysphoric. (A.R. 33, 1003). He diagnosed Plaintiff with psychotic and 22 depressive disorders (not otherwise specified), and assigned her a GAF of 55, 23 which indicates either moderate symptoms or moderate difficulty in social, 24 occupational, or school functioning. (A.R. 33, 1004). Dr. Nicholson expected 25 Plaintiff’s condition to improve in the next year with active treatment. (A.R. 26 33, 1004). At the hearing, Plaintiff said that she still experienced 27 hallucinations, but that she knew they were not real. (A.R. 33). 16 16cv928-AJB-MDD 1 The ALJ gave partial weight to Dr. Nicholson’s opinion. (A.R. 34). Dr. 2 Nicholson opined that Plaintiff is able to understand, remember and carry 3 out simple one or two-step job instructions and do detailed and complex 4 instructions. (A.R. 34, 1004). He found Plaintiff was mildly limited in her 5 ability to relate and interact with coworkers and the public and mildly 6 limited in her ability to maintain concentration and attention, persistence 7 and pace. (A.R. 34, 1004). Additionally, he found that Plaintiff was mildly 8 limited in her ability to perform work activities without special or additional 9 supervision, but also found no limitation in her ability to accept instructions 10 from supervisors and to maintain regular attendance and perform work 11 activities consistently. (A.R. 34, 1004-05). The ALJ found that the record 12 indicates that Plaintiff’s anxiety significantly increases when she is at work, 13 which limits her to unskilled work involving simple instructions, but does not 14 support a finding of mild limitation in interacting with coworkers, 15 supervisors, or the public, or that she would be unable to maintain regular 16 attendance or perform work activities consistently. (A.R. 34). 17 18 c. Dr. Rovno and Dr. Martin David Rovno, M.D., and Judy K. Martin, M.D., the State’s psychiatric 19 consultants who reviewed Plaintiff’s record opined that Plaintiff’s mental 20 impairments gave rise to mild restriction in her activities of daily living, in 21 her ability to maintain social functioning, concentration, persistence, or pace, 22 and no repeated episodes of decompensation. (A.R. 25, 99, 108, 289, 298). 23 The ALJ gave their opinions partial weight because the record suggests that 24 Plaintiff’s mental impairments give rise to more significant difficulties in her 25 concentration, persistence and pace. (A.R. 25). 26 27 d. Plaintiff’s Statements Plaintiff’s August 13, 2012, function report alleged that her 17 16cv928-AJB-MDD 1 impairments limited her memory and ability to concentrate and that she 2 could pay attention between one and two hours, but was easily distracted and 3 that her medication drastically affected her short-term memory. (A.R. 26-27, 4 288, 290). Her medication also caused her to forget words and spelling, and 5 she required frequent reminders of spoken instructions. (A.R. 27, 288, 290). 6 At the hearing, Plaintiff testified that she still sometimes experienced 7 panic attacks, becomes manic and sobs uncontrollably. (A.R. 27). She 8 testified that she takes Prozac and trazadone, that she saw a psychologist 9 about five times since March of 2014 and planned to start psychiatric 10 treatment again. (Id.). 11 C. Issues on Appeal 12 1. 13 Plaintiff argues the ALJ erred in granting little to no weight to the Lay Witness Testimony/Third Party Function Reports 14 statements of Robert Powers (Plaintiff’s boyfriend) and Teresa Michelle 15 Browning (Plaintiff’s longtime friend). Plaintiff states the ALJ may consider 16 evidence from non-medical sources, such as relatives, to show the severity of 17 the claimant’s impairment and how it affects her ability to work. See 20 18 C.F.R. § 404.1513(d). In this case, Mr. Powers (A.R. 273-281) and Ms. 19 Browning (A.R. 1114) individually prepared and submitted statements 20 regarding Plaintiff’s physical/mental disability. 21 Defendant cites Valentine v. Commissioner, Soc. Sec. Admin., 574 F. 22 3d 685, 694 (9th Cir. 2009) for the proposition that “the Ninth Circuit has held 23 that an ALJ can properly discredit lay witness testimony by noting that the 24 lay witnesses had either insufficient contact with Plaintiff, or insufficient 25 knowledge of Plaintiff’s functioning, during the relevant adjudicatory period.” 26 Defendant asserts Mr. Powers’ and Ms. Browning’s statements are not 27 supported by the credited medical evidence.” (D. ECF 17 at pg.15). 18 16cv928-AJB-MDD “Lay testimony is not equivalent to medically acceptable diagnostic 1 2 techniques that are ordinarily relied upon to establish disability.” Vincent on 3 Behalf of Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.1984). However, lay 4 witness testimony as to a claimant's symptoms is competent evidence which 5 the Commissioner must take into account. Dodrill, 12 F.3d at 919. Such 6 testimony is competent evidence and cannot be disregarded without 7 comment. Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.1996). More 8 recently, in Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006), the 9 Ninth Circuit confirmed that “‘lay testimony as to . . . how an impairment 10 affects ability to work is competent evidence . . . and therefore cannot be 11 disregarded without comment.’” (internal citations omitted). Further, 12 “[n]umerous regulations command the ALJ to consider throughout the 13 sequential process, lay testimony as to how claimants’ impairments affect 14 their ability to work. See e.g., 20 C.F.R. §§ 404.1513(d)(4) & (e), 404.1529(c), 15 404.1545, 416.913(d)(4) & (e), 416.929(c), 416.945.” Stout v. Commissioner, 16 454 F.3d 1050, 1056 (9th Cir. 2006). 17 Robert Powers’ Third Party Function Report2 confirms that the ALJ’s 18 reasons for discounting Mr. Powers’ opinion are specifically germane to Mr. 19 Powers. For example, the ALJ states that she gave partial weight to his 20 opinion because contained in his report are specific limitations that appear 21 credible coming from someone who lives with the Plaintiff. (A.R. 31). For 22 example, Mr. Powers reported that she can “lift less than 5 pounds, no 23 squatting or bending, can stand only 15 minutes, walk for 15 minutes, sit one 24 hour.” (A.R. 279). The ALJ pointed out, however, that by his own admission 25 26 27 This is a form offered by the Social Security Administration to allow lay persons to share their perceptions and opinions regarding a claimant’s disability. (Form SSA-3380-BK). 2 19 16cv928-AJB-MDD 1 Mr. Powers does not see Plaintiff for much of the day (when he is at work) nor 2 did he know Plaintiff prior to the onset of her alleged disability which 3 “indicates he has less than a thorough, longitudinal view of her condition.” 4 (A.R. 31). Notably, Mr. Powers’ report also contains statements contradictory 5 to Plaintiff’s own statements. Specifically, Plaintiff stated in her own 6 function report that she must be frequently reminded when given spoken 7 instructions. (A.R. 288). Yet Mr. Powers stated in his report that she follows 8 spoken instructions “very well.” (A.R. 279). Additionally, Mr. Powers 9 answered “I don’t know” to eight of the questions related to what she did 10 before she was ill and/or what she did during the day when he was at work. 11 (A.R. 279-281). 12 Thus, contrary to Plaintiff’s assertions, the ALJ did not reject Mr. 13 Brown’s lay testimony without comment or findings. “It is the ALJ’s role to 14 resolve evidentiary conflicts. If there is more than one rational interpretation 15 of the evidence, the ALJ’s conclusion must be upheld.” Allen v. Sec’y of Health 16 and Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984). The record 17 demonstrates the ALJ considered and properly gave only partial weight to 18 Mr. Powers’ Third-Party Adult Function Report. 19 After considering the letter from Plaintiff’s longtime friend, Teresa 20 Michelle Browning, the ALJ also gave Ms. Browning’s opinion only partial 21 weight. Ms. Browing’s letter was comprised of a single paragraph. In it, Ms. 22 Browning stated, in part: 23 24 25 26 27 I was not here to see her fall ill but I believe her illness changed her dramatically. . . .[i]n 2013 [she] was not the same woman, she was depressed, physically weak, incredibly lethargic and in constant pain. . . . So far I have not noticed medications helping her in any way . . . [f]rom my point of view her issues of work and health compound one another. . . . I truly hope she can become well someday 20 16cv928-AJB-MDD 1 2 but in her current state it is my firm belief that she needs assistance to gain some semblance of a normal life. (A.R. 1114). 3 In her decision, the ALJ noted that she gave partial weight to Ms. 4 Browning’s letter “in light of her long relationship with [Plaintiff].” (A.R. 31) 5 The ALJ noted, however, that Ms. Browning had not seen Plaintiff from 2010 6 to 2013, “a period which encompasses the alleged onset date, and much of the 7 medical record.” (Id.). The ALJ also noted that Ms. Browning’s opinion about 8 Plaintiff’s medication not helping her, contradicts the medical record. 9 Consequently, the ALJ only gave partial weight to Ms. Browning’s letter 10 based on her limited interaction with Plaintiff for several years. A person 11 must have sufficient contact with a claimant during the relevant time period 12 in order to qualify as a competent lay witness. Crane v. Shalala, 76 F.3d 251, 13 254 (9th Cir. 1995). Cf. Sprague v. Bowen, 812 F2d 1226, 1232 (9th Cir. 1987) 14 (“Descriptions by friends and family members in a position to observe a 15 claimant’s symptoms and daily activities have routinely been treated s 16 competent evidence.”). 17 Here, the ALJ satisfied her burden by providing germane and concise 18 reasons for not fully crediting the lay opinions of Mr. Powers or Ms. 19 Browning. Accordingly, the Court finds that the ALJ’s consideration of the 20 lay witness testimony is free of legal error and recommends Plaintiff’s claim 21 on this issue be DENIED. 22 2. Plaintiff’s Obesity 23 Plaintiff argues the ALJ failed to consider the impact of her obesity 24 combined with her other multiple impairments on her ability to work. 25 Specifically, Plaintiff argues that an ALJ has a responsibility to determine 26 the effect her obesity has on her other impairments and ultimate RFC 27 21 16cv928-AJB-MDD 1 assessment. (P. ECF 15 at pg.10). Plaintiff asserts that the ALJ failed to 2 include a sit/stand option3 and made no mention of the effect of her obesity on 3 her severe lumbar spine impairment and related back pain. (P. ECF 15 at pg. 4 12). According to Plaintiff, “the ALJ simply chose to ignore many of 5 Plaintiff’s most significant limitations.” (P. ECF 15 at pg. 11). Plaintiff relies on Dr. Lorber’s report that Plaintiff can do no more than 6 7 sedentary work with standing and walking limited to two hours per day. (P 8 at pg. 12). Plaintiff contends that the findings of Dr. Lorber are consistent 9 with Plaintiff’s testimony and Third Party Reports. (Id.). Plaintiff also 10 argues that even though the ALJ utilized the assistance of the VE, the ALJ 11 erred by failing to include a sit/stand option in the available jobs within 12 Plaintiff’s RFC. (P. ECF 15 at pg. 13). 13 Defendant states “the ALJ properly determined that the objective 14 medical evidence . . . did not support the inclusion of additional limitations in 15 the RFC.” (Def. ECF 18 at pg. 9). Defendant also asserts that “obesity must 16 be evaluated based on the information in the case record.” (Id.). “In 17 particular, as the ALJ noted, Plaintiff consistently had normal (and 18 unassisted) gait, range of motion, coordination, strength, sensation, reflexes, 19 and straight leg raise testing during physical examinations.” (Id. citing A.R. 20 at 29-30, 350, 361, 370, 380, 430, 443, 479, 485, 491, 498, 522, 543, 1053, 21 1064, 1068, 1071, 1080, 1089,1092-93, 1096, 1182, 1224, 1228). 22 In this case, the ALJ determined that Plaintiff satisfied the criteria for 23 steps one, two and four – she has not engaged in substantial gainful activity, 24 she suffers from “severe” impairments (but not a listed impairment) and she 25 26 27 Such a limitation is commonly referred to as an at-will sit/stand option. Wester v. Colvin, 2015 WL 4608139 (C.D. Cal. July 31, 2015). 3 22 16cv928-AJB-MDD 1 is not capable of performing her past work. Specifically, the ALJ noted that 2 “[t]he claimant has the following severe impairments: degenerative disc 3 disease, obesity, psychotic disorder, and depressive disorder.” (A.R. 23). The 4 ALJ goes on to state that “the medical record suggests the claimant is obese.” 5 (Id.). “Because of obesity, an individual may have limitations in any of the 6 exertional or postural functions, in her ability to manipulate objects, and in 7 her tolerance of extreme heat, humidity, or hazards. . . . The effects of 8 claimant’s obesity have been considered when determining a residual 9 functional capacity for the claimant.” (Id.). 10 In analyzing the effect of Plaintiff’s obesity on her other impairments 11 and overall functional capabilities the ALJ found: 12 In cases where obesity is a severe impairment, it may be found to equal a listing, or alternatively, may increase the severity of coexisting or related impairments to the extent that the combination of impairments to the extent that the combination of impairments meets the requirements of a listing. Here, the effects of the claimant’s obesity are not sufficiently severe to equal a listing, and do not increase the severity of a coexisting or related impairment sufficiently to meet the requirements of a listing. (A.R. 24). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Ultimately, the ALJ assessed Plaintiff’s RFC as follows: [C]laimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she can lift, carry, push or pull no more than 10 pounds, stand or walk no more than 2 hours, total, in an 8-hour workday, and for nor more than 30 minutes at a time, sit for 6 hours in an 8-hour workday, with the ability to stand and stretch not more than 10 percent of the day; occasionally climb ramps and stairs, balance, stoop, kneel, and crouch, never climb ladders, ropes, or scaffolds, crawl, operate fast or dangerous 23 16cv928-AJB-MDD 1 2 3 4 5 machinery or drive commercial vehicles; never work in environments involving exposure to unprotected heights, or concentrated exposure to vibration; can perform no more than unskilled work, involving simple, repetitive tasks, and cannot perform fast paced work. (A.R. 26). The medical evidence in the record supports the ALJ’s assessment. For 6 example, Plaintiff’s treating physician, Dr. Harris, noted that in October 7 2011, Plaintiff presented with pain during his palpitation and range of 8 motion tests, but she could heel walk, toe walk, and perform a deep knee 9 bend. (A.R. 679). In January 2012, Dr. Huber reported that Plaintiff 10 displayed normal reflexes, muscle tone, and coordination. (A.R. 739). 11 Similarly, Plaintiff demonstrated normal muscle strength, normal deep 12 tendon reflexes bilaterally in her knees and normal gait. (Id.). In February 13 2012, during a follow-up office visit for back pain, Dr. Huber noted Plaintiff to 14 be morbidly obese and instructed her on, among other things, BMI/weight 15 management and smoking cessation. In addition, Plaintiff was directed to 16 continue on her current pain medication regimen. (A.R. 787). During a 17 subsequent office visit in July 2012, Dr. Huber, discussed Plaintiff’s obesity 18 and encouraged diet and exercise. He also noted Plaintiff was still smoking. 19 These visits demonstrate the rather non-critical manner in which Dr. Huber 20 treated Plaintiff’s obesity. 21 Dr. Rachel Tabangcura Pack, D.O., a treating physician, reviewed 22 Plaintiff’s June 2012 MRI and found, in part, degenerative disc disease at L4- 23 5 with the remainder of the visualized lumber intervertebral disk spaces 24 essentially preserved. Significantly, Dr. Pack noted that Plaintiff’s current 25 MRI showed no notable changes when compared to a January 2010 MRI. 26 (A.R. 388). 27 24 16cv928-AJB-MDD 1 The ALJ also cited to the findings of Dr. Frederick Close, M.D., the 2 State’s orthopedic consultative examiner. During an examination in October 3 2012, Dr. Close noted that Plaintiff showed increased lumbar lordosis, 4 however, her cervical spine examination revealed no tenderness on 5 palpitation and no spasm. Dr. Close reported Plaintiff had normal range of 6 motion in her cervical spine, hips, knees, ankles, shoulders, elbows, wrists, 7 and fingers. (A.R. 1009-1011). Plaintiff demonstrated some limitation in 8 range of motion in the dorsolumber spine and examination of the 9 dorsolumber spine revealed tenderness in the right lumbar spine with some 10 spasm. (Id.). Dr. Close’s functional assessment included the following: “The 11 examinee should be able to sit, stand and walk at least six hours out of an 12 eight hour day with normal rest breaks. She did not require assistive devices 13 and could lift and carry 50 pounds occasionally, 25 pounds frequently. 14 Plaintiff has no postural, manipulative, or visual limitations.” (Id.). Notably, 15 the ALJ gave little weight to the opinion of Dr. Close, because as noted 16 previously he opined that Plaintiff could sit, stand, walk at least 6 hours in 17 an 8 hour day with normal rest breaks; and was capable of lifting and 18 carrying 50 pounds occasionally and 25 pounds frequently with no other 19 limitations. (A.R. 1011). The ALJ found that “Dr. Close’s opinion is 20 inconsistent with the record, which . . . suggests that the claimant’s 21 functional capacity is subject to far greater limitations.” (A.R. 32). Likewise, 22 Dr. Lorber’s opinion was given only some weight because he opined that 23 Plaintiff could lift at the light exertional capacity and occasionally work 24 around moving machinery, but could sit only for 30 minutes at a time and 25 requires a sit/stand option. (A.R. 32). 26 Despite Plaintiff’s claims that the ALJ failed to consider Plaintiff’s 27 obesity and how it affects her other limitations, it is clear from a review of the 25 16cv928-AJB-MDD 1 ALJ’s decision and citation to the medical record that the ALJ’s RFC 2 determination was based on substantial evidence. Throughout her decision 3 the ALJ addressed and considered the impact of Plaintiff’s obesity in regard 4 to alleged disabilities. Indeed, the ALJ appeared to have sensitively 5 addressed the impact of Plaintiff’s weight on her RFC. For example, the ALJ 6 stated she determined Plaintiff’s sitting restrictions based, in part, upon 7 Plaintiff’s behavior at the hearing. The ALJ noted that during the hearing 8 Plaintiff exhibited discomfort and stood to stretch on several occasions. (Id.). 9 Likewise, the ALJ relied upon the statement of a field office employee who 10 noted that Plaintiff was uncomfortable sitting and complained of pain 11 following the interview. (A.R. 31). 12 The ALJ also considered and addressed a letter brief submitted by 13 Plaintiff’s representative, Mr. Roy Cannon. Significantly, Mr. Cannon argued 14 that Dr. Lorber’s testimony was limited to reviewing Exhibits 1F-13F and did 15 not have the benefit of claimant’s testimony, or Exhibits 14F-17F. (A.R. 330). 16 Yet, in Plaintiff’s motion for summary judgment prepared by Mr. Cannon, 17 Plaintiff argues that the ALJ committed reversible error for not following Dr. 18 Lorber’s opinion testimony. (P. ECF 15 at pg. 12). In response, to Mr. 19 Cannon’s letter brief, the ALJ stated that “while the record supports many of 20 the statements contained in Mr. Cannon’s [] brief, his conclusions are not 21 supported.” (Id.). For example, the ALJ points out that the record does not 22 support Mr. Cannon’s contention that Plaintiff is unable to complete an 8 23 hour work day, would likely miss one or more days per week of work due to 24 her impairments, and is limited to sitting and standing 5 to 10 minutes at a 25 time. (Id.). 26 27 Title 20 C.F.R. § 416.920(b) states “after the [ALJ] review[s] all of the evidence relevant to your claim, including medical opinions [the ALJ] make[s] 26 16cv928-AJB-MDD 1 findings about what the evidence shows.” Id. Indeed, it is well settled that 2 “the ALJ is the final arbiter with respect to resolving ambiguities in the 3 medical evidence.” Tommasetti, 533 F.3d at 1041-42. Even when the 4 evidence before the ALJ is subject to more than one rational interpretation, 5 we must defer to the ALJ's conclusion. Andrews v. Shalala, 53 F.3d 1035, 6 1041 (9th Cir.1995); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 7 1198 (9th Cir. 2004). Here, the ALJ clearly relied on the findings of the 8 treatment records and reports cited in the administrative record. The ALJ’s 9 findings are consistent with the record as a whole. 10 Plaintiff next contends the ALJ “failed to instruct the vocational expert 11 to consider the claimant’s need to alternate between periods of sitting and 12 standing. (P. ECF 15 at pg. 13). In response, Defendant cites to Rollins v. 13 Massanari, 261 F.3d 853, 857 (9th Cir. 2001), for the proposition that 14 “[b]ecause the ALJ included all of the limitations [] found to exist, and 15 because [her] findings were supported by substantial evidence the ALJ did 16 not err in omitting the other limitations that [Plaintiff] had claimed, but had 17 failed to prove.” Id. 18 In support, Plaintiff makes three arguments to support her claim. 19 First, Plaintiff states “Dr. Lorber found that plaintiff is essentially limited to 20 sedentary work. . . [s]itting could be accomplished for a total of 6 hours a day, 21 but not … more than 30 minutes at a time. . .[a]fter sitting for 30 minutes, 22 plaintiff should rise and continue to work in a standing or walking position 23 for a period of thirty minutes.” (P. ECF 15 at pg. 12 citing A.R. 49-58). 24 Plaintiff goes on to assert that “[t]he limitations found by Dr. Lorber are 25 consistent with the testimony of plaintiff. . . .” (Id.). 26 Plaintiff’s reliance on Dr. Lorber’s opinion is error. As noted herein, 27 Plaintiff’s RFC does not incorporate a sit/stand option, rather a stand and 27 16cv928-AJB-MDD 1 stretch option. Also, an ALJ is not required to fully adopt or even give “great 2 weight” to the opinion of one physician, rather, an ALJ is required to consider 3 “all of the relevant medical and other evidence” when establishing an RFC. 4 See 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3) 5 Second, Plaintiff argues that the ALJ “failed to instruct the vocational 6 expert to consider the claimant’s need to alternate between periods of sitting 7 and standing.” (P. ECF 15 at pg. 13). Plaintiff’s argument is not supported 8 by the facts and evidence presented. For example, the ALJ included in 9 Plaintiff’s RFC the need to stand and stretch not the need for alternating at 10 will between sitting and standing while continuing to work (i.e. sit/stand 11 option). A review of the hearing transcript demonstrates that when the VE 12 was called to testify, the ALJ presented the VE with the following 13 hypothetical: 14 ALJ: I would like you to consider someone the same age, education, and past work experience as [Plaintiff], with the following limits specifically: Lifting and carrying no more than 20 pounds occasionally, 10 pounds frequently; pushing and pulling within those weight limits; standing and walking would be limited to two hours out of an eight-hour workday, with no prolonged walking greater than 30 minutes at a time, sitting six out of eight with the ability to stand and stretch, not to exceed 10 percent of the day; no ladders, ropes, and scaffolds; no crawling,; occasional as to all the postural; no work hazards such as working at unprotected heights, operating fast or dangerous machinery or driving commercial vehicles; no concentrated exposure to vibration; unskilled work; simple repetitive tasks; no fast paced work. (A.R. 83). 15 16 17 18 19 20 21 22 23 24 25 In response, the VE testified that Plaintiff would be unable to perform 26 any of her past work, but after the ALJ modified the hypothetical to lifting no 27 more than 10 pounds, either occasionally or frequently and limited Plaintiff 28 16cv928-AJB-MDD 1 to sedentary work, the VE testified that there were other jobs in the national 2 economy that Plaintiff could perform at the sedentary and unskilled level. 3 (A.R. 84). According to the Dictionary of Occupational Titles, sedentary work 4 involves sitting most of the time, but may involve walking or standing for 5 brief periods of time. Jobs may be categorized as Sedentary when walking 6 and standing are required only occasionally and all other sedentary criteria 7 are met. Appendix C. Physical Demands, SCODICOT Appendix C. Here, the VE testified that Plaintiff would be able to perform the jobs of 8 9 information clerk 237.367-018, mail clerk 209.687-026, or charge account 10 clerk 205.367-014. A review of these job descriptions as set out by the 11 Dictionary of Occupational Titles demonstrate that the position of 12 information clerk is categorized as light work with no significant handling, a 13 medium degree of finger dexterity, low degree of manual dexterity, and 14 markedly low eye-hand-foot dexterity. Dictionary of Occupational Titles, 15 Fourth Ed. Revised 1991. The position of mail clerk is categorized as light 16 work, with significant handling, with a low degree of aptitude ability in 17 finger dexterity, manual dexterity and eye-hand-foot dexterity. 4 Id. The 18 third job cited by the VE was charge account clerk and is sedentary work 19 with no significant handling of things and with a low degree of aptitude 20 ability in finger dexterity, manual dexterity and eye-hand-foot dexterity. Id. 21 Lastly, Plaintiff cites to the VE’s testimony in response to questioning 22 by Plaintiff’s representative to support her claim. Specifically, Mr. Cannon 23 asked the VE “those jobs don’t have a sit/stand option do they?” The VE 24 25 26 27 While the DOT categorizes two of these jobs as light, the VE testified that for the mail clerk position “the Department of Labor and the Bureau of Labor Statistics also has this position at sedentary.” (A.R. 84). 4 29 16cv928-AJB-MDD 1 replied “no.” Mr. Cannon went on to ask “So if a sit/stand option was 2 required, those jobs would not be available, correct?” The VE replied “That’s 3 correct.” (A.R. 86). This testimony does not help Plaintiff’s allegation of error 4 because as noted above the sit/stand option was not included in Plaintiff’s 5 RFC, so it is irrelevant whether those jobs are not available to someone who 6 requires a sit/stand option. 7 The RFC developed by the ALJ is better suited to Plaintiff’s limitations. 8 In fact, Plaintiff testified that she is only able to stand for 5-10 minutes: 9 13 ALJ: How long are you able to stand, on average? Plaintiff: Five to 10 minutes. ALJ Then what happens? Plaintiff: Then I get the burning sensation through my legs. . .my legs go numb. (A.R. 78). 14 Based upon the record evidence, a sit/stand option is no option for Plaintiff, 15 rather, her RFC contemplates that if she is in a sedentary job, she will be 16 able to stand and stretch and sit back down after 5-10 minutes. Including a 17 sit/stand option in Plaintiff’s RFC would have been error. 10 11 12 18 Title 20 C.F.R. § 416.927(6)(d)(1) states in part, “[the ALJ is] 19 responsible for making the determination or decision about whether [a 20 claimant] meet[s] the statutory definition of disability.” The Court’s review of 21 the administrative record revealed no ambiguity or error indicating that the 22 ALJ’s decision was based on less than substantial evidence. 42 U.S.C. § 23 405(g). The opinion evidence in the record supports the ALJ’s decision with 24 few exceptions. 25 Accordingly, the Court finds the ALJ’s findings of fact and conclusions 26 of law, including Plaintiff’s RFC, is supported by substantial evidence and 27 free of legal error. 30 16cv928-AJB-MDD III. 1 2 CONCLUSION The Court RECOMMENDS that Plaintiff’s Motion be DENIED and 3 that Defendant’s Motion be GRANTED. This Report and Recommendation 4 of the undersigned Magistrate Judge is submitted to the United States 5 District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 6 636(b)(1). 7 IT IS HEREBY ORDERED that any written objection to this report 8 must be filed with the court and served on all parties no later than May 10, 9 2017. The document should be captioned “Objections to Report and 10 11 Recommendations.” IT IS FURTHER ORDERED that any reply to the objections shall be 12 filed with the Court and served on all parties no later than May 17, 2017. 13 The parties are advised that failure to file objections within the specified time 14 may waive the right to raise those objections on appeal of the Court’s order. 15 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 17 Dated: April 25, 2017 18 19 20 21 22 23 24 25 26 27 31 16cv928-AJB-MDD

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