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)

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