Novak v. Colvin
ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF AND REMANDING FOR FURTHER PROCEEDINGS. 1) Ms. Novak's 12 Motion for Summary Judgment is GRANTED. 2) The Commissioner's 13 Motion for Summary Judgment is DENIED. 3) The Commissioner 039;s decision denying benefits to Ms. Novak is REVERSED pursuant to sentence four of 42 U.S.C. 405(g) and her claim is REMANDED for additional administrative proceedings consistent with the order. Signed by Magistrate Judge John Johnston on 4/10/2017. (SLR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
LORAIN M. NOVAK,
ORDER GRANTING SUMMARY
JUDGMENT IN FAVOR OF
PLAINTIFF AND REMANDING
FOR FURTHER PROCEEDINGS
NANCY BERRYHILL, Acting
Commissioner of Social Security,
Lorain M. Novak (Ms. Novak) brings this action under 42 U.S.C. § 405(g)
seeking judicial review of the decision of the Commissioner of the Social Security
Administration (Commissioner) denying her application for disability benefits
under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401-433. Ms.
Novak filed her application for disability insurance benefits on May 8, 2012,
alleging disability beginning August 1, 2011, due to a low back fusion, various
spondyolisthesis, arthritis, arm and hand numbness, chronic sinus/ear infections,
depression, anxiety, narcolepsy, vocal cord dysfunction, and recurring diarrhea.
(Doc. 8 at 247-248, 263) Ms. Novak’s claim was denied initially and on
reconsideration. (Id. at 125 and 140)
An Administrative Law Judge conducted a hearing on August 19, 2014, at
which Ms. Novak appeared with counsel. (Id. at 18-36) The ALJ issued his
decision on January 9, 2015, in which he concluded that Ms. Novak had the
residual functional capacity (RFC) to perform past relevant work as a child support
officer and social services administrator and that other jobs that exist in significant
numbers in the national economy and was therefore not disabled within the
meaning of the Act. (Id.)
On March 2, 2015, Ms. Novak timely requested that the Commissioner
review the ALJ’s decision. (Id. at 13) The Appeals Council for the Commissioner
denied Ms. Novak’s request for review on June 3, 2016, making the ALJ’s decision
the Commissioner’s final decision. (Id. at 1-4)
Ms. Novak timely filed a complaint on July 4, 2016, seeking judicial review
of the Commissioner’s decision. (Doc. 1) The Court has jurisdiction over this
action under 42 U.S.C. § 405(g). The parties consented to the undersigned
conducting all further proceedings in this matter. (Doc. 6) The Great Falls
Division of the District of Montana is the proper venue because Ms. Novak resides
in Cascade County, Montana. (Doc. 1 at 1); 42 U.S.C. 405(g); Local Rule
Ms. Novak filed an opening brief on December 12, 2016, requesting that the
Court reverse the Commissioner’s decision and remand the case to cure the
Commissioner’s claimed errors. (Doc. 12) The Commissioner filed a response brief
on December 12, 2016, and Ms. Novak filed a reply brief on January 31, 2017.
(Docs. 13 and 15) The motion is ripe for decision.
Ms. Novak was born on October 10, 1969. (Doc. 8 at 247) She was 42 years
old when she filed her application on May 8, 2012, and 45 years old at the time of
the ALJ’s January 9, 2015 decision. See (Id.)
STANDARD OF REVIEW
The Court’s review is limited. The Court may set aside the Commissioner’s
decision only where the decision is not supported by substantial evidence or where
the decision is based on legal error. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1
(9th Cir. 2005). Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006). Substantial evidence has also been described as “more than a mere
scintilla” but “less than a preponderance.” Desrosiers v. Sec. of Health and Hum.
Services, 846 F.2d 573, 576 (9th Cir. 1988).
"The ALJ is responsible for determining credibility, resolving conflicts in
medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). This Court must uphold the Commissioner's findings
"if supported by inferences reasonably drawn from the record." Batson v.
Commissioner of Social Security Administration, 359 F.3d 1190, 1193 (9th Cir.
2004). "[I]f evidence exists to support more than one rational interpretation," the
Court "must defer to the Commissioner's decision." Batson, 359 F.3d at 1193
(citing Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 1999)). This Court
"may not substitute its judgment for that of the Commissioner." Widmark, 454 F.3d
at 1070 (quoting Edlund, 253 F.3d at 1156).Where evidence is susceptible to more
than one rational interpretation, one of which supports the ALJ’s decision, the
ALJ’s conclusion must be upheld. Thomas v. Barhart, 278 F.3d 947, 954 (9th Cir.
The Court must consider the record as a whole, weighing both the evidence
that supports and detracts from the Commissioner’s conclusion. Green v. Sheckler,
803 F.2d 528, 530 (9th Cir. 1986). The Court may reject the findings not supported
by the record, but it may not substitute its findings for those of the Commissioner.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
III. BURDEN OF PROOF
A claimant is disabled for purposes of the Social Security Act if the claimant
demonstrates by a preponderance of the evidence that (1) the claimant has a
“medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve months”; and (2) the impairment or impairments are
of such severity that, considering the claimant’s age, education, and work
experience, the claimant is not only unable to perform previous work but also
cannot “engage in any other kind of substantial gainful work which exists in the
national economy.” Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 974
(9th Cir. 2000) (citing 42 U.S.C. §1382(a)(3)(A)-(B)).
The Commissioner’s regulations provide a five-step sequential evaluation
process for determining whether a claimant is disabled. Bustamante v. Massanari,
262 F.3d 949, 953 (9th Cir. 2001); 20 C.F.R. §§ 404.1520, 416.920. The claimant
bears the burden of proof at steps one through four, and the Commissioner bears
the burden of proof at step five. Id. at 954. The five steps of the inquiry are:
Is the claimant presently working in a substantially gainful
activity? If so, the claimant is not disabled within the meaning
of the Social Security Act. If not, proceed to step two. See 20
C.F.R. §§ 404.1520(b), 416.920(b).
Is the claimant’s impairment severe? If so, proceed to step
three. If not, the claimant is not disabled. See 20 C.F.R. §§
Does the impairment “meet or equal” one of a list of specific
impairments described in 20 C.F.R. Part 220, Appendix 1? If
so, the claimant is disabled. If not, proceed to step four. See 20
C.F.R. §§ 404.1520(d), 416.920(d).
Is the claimant able to do any work that he or she has done in the past?
If so, the claimant is not disabled. If not, proceed to step five. See 20
C.F.R. §§ 404.1520(e), 416.920(e).
Is the claimant able to do any other work? If so, the claimant is not
disabled. If not, the claimant is disabled. See 20 C.F.R. §§
At step one, the ALJ determined that Ms. Novak has not engaged in
substantial gainful activity since August 1, 2011, the alleged onset date of her
disability. (Doc. 8 at 20) At step two, the ALJ found that Ms. Novak has the
following severe impairments: degenerative disc disease; spondylolisthesis;
polyarthalgia; carpal tunnel syndrome; diabetes mellitus, type II; and obstructive
sleep apnea. (Id. at 20)
At step three, the ALJ found that Ms. Novak did not have an impairment, or
combination of impairments, that met or was medically equal to one of the listed
impairments. (Id. at 25)
Before considering step four, the ALJ assessed Ms. Novak as having the
RFC to perform sedentary work as defined in 20 C.F.R. § 1567(a) with the
following limitations: she can walk for approximately six minutes at one time; she
can be on her feet for up to 10 minutes at any one time; she can be on her feet up
to, but not more than, two hours in an eight-hour day; she can sit for one hour at a
time, and for at least six hours in an eight hour day; she can lift up to 10 pounds
occasionally and less than 10 pounds frequently; she cannot kneel, crawl, or climb
ladders or scaffolds; she must avoid concentrated exposure to extreme cold and
vibration; and she cannot engage in repetitious uses of her bilateral upper
extremities, but they can still be used for gross and fine motor on a frequent basis.
(Id. at 26-33)
At step four, the ALJ determined that with her RFC Ms. Novak is capable of
performing past relevant work as a child support officer and social services
administrator. (Id. at 33-34)
At step five, the ALJ made an alternative determination that, considering
Ms. Novak’s age, education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy as a lost-card-charge clerk,
information clerk, and customer service clerk that Ms. Novak could perform, and,
therefore, she has not been under a disability since August 1, 2011, the claimed
onset date of her disability, through the date of his January 9, 2015, decision. (Id.
Ms. Novak’s Position
Ms. Novak argues the Court should reverse the Commissioner’s decision
and remand the case to the Commissioner for a new administrative hearing
The ALJ erred at the second step of the sequential analysis in
determining that her fibromyalgia was not medically determinable and
that her major depression and narcolepsy were non-severe
impairments; (Doc. 12 at 2)
The ALJ’s assessment of her RFC is erroneous because it is not based
upon substantial evidence and is contrary to
the law. (Id.)
The Commissioner’s Position
The Commissioner argues that the Court should enter summary judgment in
her favor because:
The ALJ properly determined at the second step of the sequential
analysis that Ms. Novak’s impairment of fibromyalgia was not
medically determinable, that her major depression and narcolepsy
were non-severe impairments, and any error in doing so was harmless;
(Doc. 13 at 3)
The ALJ’s assessment of Ms. Novak’s RFC is supported by
substantial evidence and is not based upon legal error. (Doc. 13 at 11)
Step two issues
Step two of the five-step sequential inquiry imposes a de minimis screening
device to dispose of groundless claims. Smolen v. Chater, 80 F.3d 1273, 1290 (9th
Cir. 1996). The Social Security Regulations and Rulings, as well as case law
applying them, discuss the step two severity determination in terms of what is “not
severe.” Id. An impairment is not severe if it does not significantly limit [the
claimant's] physical ability to do basic work activities.” Id. Basic work activities
are “abilities and aptitudes necessary to do most jobs, including, for example,
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling.”
In assessing a claimant’s RFC, the ALJ is required to consider all of the
claimant’s medically determinable impairments, including those medically
determinable impairments that are not “severe”, and any related symptoms that
affect what the claimant can do in a work setting. 20 C.F.R § 404.1545; 20 C.F.R.
§ 416.945. An ALJ’s failure to determine that an impairment is severe at step two
is harmless error where the ALJ proceeds to the next step and where the ALJ
considers the symptoms and limitations from all of the claimant’s medically
determinable impairments in the RFC assessment. Gray v. Commissioner of Social
Sec. Admin., 365 Fed. Appx. 60, 61 (9th Cir. 2010) (citing Burch v. Barnhart, 400
F.3d 676, 682 (9th Cir. 2005)).
The ALJ did not error in determining that Ms. Novak’s
fibromyalgia was not medically determinable.
Ms. Novak argues that she has fibromyalgia, that the evidence establishes
that she has fibromyalgia pursuant to the criteria as set forth in SSR 12-2p, and that
the ALJ erred in determining otherwise. (Doc. 12 at 13) The Commissioner argues
that substantial evidence supports the ALJ’s determination that Ms. Novak’s
claimed fibromyalgia is not medically determinable because the evidence fails to
satisfy the criteria as SSR 12-2p requires. (Doc. 13 at 8)
Pursuant to SSR 12-2p the ALJ may assess fibromyalgia under the 1990
American Colllege of Rheumatology (ACR) criteria or under the 2010 ACR
criteria. Here, the the ALJ considered both the 1990 and 2010 ACR criteria in
determining whether Ms. Novak’s fibromyalgia was medically determinable. (Doc.
8 at 7-8)
In relation to the 1990 ACR criteria, substantial evidence supports the ALJ’s
determination that the medical record does not disclose at least 11 positive trigger
points on physical examination. Therefore, the 1990 ACR criteria are not met.
Furthermore, substantial evidence supports the ALJ’s determination that Ms.
Novak's symptoms are attributable to other conditions, such as her degenerative
disc disease. (Doc. 8 at 25)
In relation to the 2010 ACR criteria, these require substantial evidence
supporting the ALJ’s determination that co-occurring conditions were excluded as
causing her symptoms. Substantial evidence supports the ALJ’s determination that
no such exclusion took place in relation to her symptoms. (Id.)
Ms. Novak also argues that the ALJ’s determination that her fibromyalgia
was not medically determinable is error because “no provider disputes the
fibromyalgia diagnosis.” (Doc. 12 at 15) However, whether a provider disputes
Ms. Novak’s diagnosis is not a factor the ALJ was required to consider under
either the 1990 or 2010 ACR criteria.
The Court determines that the ALJ applied the correct criteria in determining
whether Ms. Novak’s claimed impairment of fibromyalgia was medically
determinable and that substantial evidence supports the ALJ’s determination that
neither the 1990 nor the 2010 ACR criteria were satisfied.
In assessing Ms. Novak’s RFC, the ALJ is only required to consider
symptoms and limitations imposed by medically determinable impairments.
Because Ms. Novak’s fibromyalgia is not medically determinable, the ALJ did not
error by failing to consider the limitations imposed by her claimed fibromyalgia in
the RFC assessment as Ms. Novak argues he did. Furthermore, the ALJ stated that
even though he did not find her fibromyalgia to be medically determinable, his
RFC assesment would likely not change even if he had because the limitations
attributable to her fibromyalgia are considered through their relation to other
impairments. (Doc. 8 at 25) As such, the ALJ did “consider” the fibromyalgia
related symptoms and limitations in assessing Ms. Novak’s RFC despite his
determination that it was not a medically determinable impairment. Therefore, the
ALJ determination the Ms. Novak’s firbromyalgia was not a medically
determinable impairment was harmless error.
The ALJ did not error in determining Ms. Novak’s major
depression was non-severe impairment.
Ms. Novak argues that the ALJ erred in determining that her major
depression and narcolepsy were non-severe impairments. (Doc. 12 at 17) In
support of this argument, Ms. Novak points to the medical record verifying her
major depression affected her day to day functioning, her testimony about how her
major depression impacts her ability to work, the medical record that verifies her
being diagnosed with narcolepsy, and her testimony about how her narcolepsy
limits her abilities. (Id.) The Commissioner argues that the medical record fails to
establish any work-related limitations as a result of her major depression and
narcolepsy. (Doc. 13 at 9)
Turning first to the narcolepsy, the medical record reflects that Ms. Novak
suffered from this medically determinable impairment to the extent that is caused
her “to fall asleep at work in the afternoon.” (Doc. 8 at 352) The medical record
also reflects that Ms. Novak’s narcolepsy had become unpredictable and that she
required many hours of sleep “both during the day and night.” (Id. at 823) Ms.
Novak also testified at the hearing that when she was working she would fall
asleep at her desk and “whack myself on the computer or fall out of her chair on to
the floor.” (Id. at 65) She also testified that at time of the hearing she would fall
asleep unpredictably two to three times a week for two to three minutes or up to
fifteen minutes at a time. (Id.) The ALJ determined that although Ms. Novak’s
narcolepsy was a diagnosed impairment, the “records do not establish any more
than minimal functional limitations.” (Id. at 21) The records the ALJ cited in
support of this determination provided that although she was suffering from
“increased sleepiness,” her narcolepsy was under “fair control.” (Doc. 8 at 350,
799-800) The Court finds that the medical records provide substantial evidence to
support the ALJ’s determination that Ms. Novak’s narcolepsy was a non-severe
impairment and that the ALJ’s finding is not based on legal error.
Next, Ms. Novak argues her severe depression is medically determinable and
the medical record reflects that her depression is intertwined with the pain she
suffers causing her day-to-day functioning to be “really affected.” (Doc. 12 at 16;
Doc.8 at 858) Ms. Novak also testified that her physical problems have resulted in
anxiety and depression, which in turn adversely affects her ability to work. (Doc.
12 at 16)
The Court finds that the ALJ’s determination that Ms. Novak’s severe
depression was non-severe is supported by substantial evidence because the
medical record does not provide any work limitation(s) the severe depression
imposes upon Ms. Novak.
The ALJ’s RFC Assessment
Ms. Novak advances several arguments in support of her position that the
ALJ’s RFC assessment is not based upon substantial evidence and is based on legal
error. (Doc. 12 at 18-29) Each argument will be addressed separately below.
SSR 96-7p or SSR 16-3p
Ms. Novak raised the issue of whether SSR 16-3p or SSR 96-7p governs the
Court’s review of the ALJ’s evaluation of Ms. Kovak’s statements regarding the
intensity, persistence, and limiting effect of her symptoms. (Doc. 12 at 18) SSR 163p superceded SSR 96-7p with an effective date of March 28, 2016. (Id.) The
ALJ’s decision regarding Ms. Kovak’s claim was issued on January 9, 2015. (Doc.
8 at 15) Therefore, SSR 96-7p governed the ALJ’s decision and the Court will
review the ALJ’s decision under the guidance provided in SSR 96-7p.
Montana Public Employee’s Retirement System Disability
Ms. Novak was determined to be disabled under Montana’s Public
Employee’s Retirement System (“PERS”) rules and regulations. (Doc. 8 at 31-32)
Ms. Novak argues that the ALJ, although he acknowledged this disability
determination, erred in misapprehending the PERS’s disability determination.
(Doc. 12 at 19-21) The Commissioner argues that the ALJ properly considered the
PERS’s disability determination and committed no error. (Doc. 13 at 15)
Disability determinations by other government agencies are not binding on
the Commissioner. See 20 C.F.R. § 404.1504; Little v. Richardson, 471 F.2d 715,
716 (9th Cir. 1972) (State determination of disability was not binding in
proceedings on application for Social Security disability benefits). This rule applies
even where the standards for obtaining disability benefits through another agency
are more rigorous than the standards applied by the Social Security Administration.
See Wilson v. Heckler, 761 F.2d 1383, 1386 (9th Cir. 1985). Therefore, while a
state finding of disability can be introduced into evidence in a proceeding for
Social Security disability benefits, an ALJ may attribute as much or as little weight
to the finding as he or she deems appropriate.
Here, the ALJ considered the PERS’s disability examiner’s opinions that led
to his determination that Ms. Novak was disabled and determined that they were to
be given “minimal weight.” (Doc. 8 at 32) The ALJ’s reasons for according this
weight were that PERS’s disability examiner’s opinions “are vague, and do not
provide the type of specific functional limitations that are needed in asserting a
claimant’s RFC. (Id.)
Although Ms. Novak would have given the PERS’s disability examiner’s
opinions greater weight than did the ALJ, this does not constitute error on the part
of the ALJ. The Court finds that the ALJ considered the PERS’s disability
determination, attributed the weight to it as he determined was appropriate, and
gave his reasons for doing so that were supported by substantial evidence.
Therefore, the ALJ did not error as Ms. Novak claims.
Medical and Other Opinions
Ms. Novak argues that the ALJ erred in giving Nurse Jill Voegel’s opinions
expressed in her January 29, 2014 hospital discharge notes “significant weight” in
assessing Ms. Novak’s RFC because the notes only reflect Voegel’s opinion about
whether she can perform certain activities of daily living upon being discharged
from the hospital formulated after a single visit with her and Voegel’s opinions do
not relate to her ability to function in a work environment. (Doc. 12 at 21-22) The
Commissioner argues Voegel’s opinions are the type of evidence an ALJ may
properly consider in assessing a claimant’s RFC and that the ALJ considered
Voegel’s opinions along with the entire record. (Doc. 13 at 19-20)
Voegel’s notes reflect that she was assessing Ms. Novak’s ability to dress
her upper and lower body, bath, use the toilet, transfer, and walk in connection
with Ms. Novak being discharged from the hospital where she had been admitted
for seven days for treatment of a lower leg contusion. (Doc. 8 at 942-948) Voegel’s
notes do not reflect, among other things, the time it took Ms. Novak to perform
these activities or the effort required to perform these activities. The ALJ performs
a RFC assessment to determine an individual’s ability to do sustained work-related
physical and mental activities in a work setting on a regular and continuing basis.
SSR 96-8p. There no indication in Voegel’s notes that she was attempting to
assess whether Ms. Novak had the ability to engage in “sustained work-related. . . a
regular and continuing basis” and it is obvious from the setting in which Voegel
was making her assessment that Ms. Novak was not “in a work setting.”
Therefore, the Court determines that substantial evidence does not support the ALJ
giving Voegel’s one-time, limited assessment “significant weight” in assessing Ms.
Novak’s RFC and it was error to do so. The Court therefore remands Ms. Novak’s
claim to the ALJ to re-assess Ms. Novak’s RFC without “significant weight” being
given to Voegel’s January 29, 2014 assessment.
Drs. Fernandez and Schofield
Dr. Fernandez performed an assessment of Ms. Novak’s RFC on October
16, 2012, covering the period of time from August 1, 2011, to October 16, 2012, in
his role as a non-treating State agency medical consultant and expressed several
opinions related to his assessment. (Doc. 8 at 121-124) The ALJ assigned “limited
weight” to Dr. Fernandez’s opinions because (1) his opinion slightly
underestimates the exertional limitations imposed by Ms. Novak’s impairments as
established in the record; (2) he assesses greater environmental impairments than
appear to be warranted when considering Ms. Novak’s treatment record; (3) he
fails to fully account for some of Ms. Novak’s impairments when addressing her
postural limitation; (4) his opinion does not provide particularly clear explanations
for the rational behind the opinion. (Id. at 32).
Dr. Schofield expressed several opinions in relation to Ms. Novak’s
application for PERS state disability benefits. (Id.) The ALJ gave Dr. Scholfield’s
opinions little weight because (1) they are not based on any personal interaction
with Ms. Novak, but a simple review of the records; (2) the limitations provided
are fairly vague, and do not provide much in the way of specific functional
limitations that help develop a RFC for Ms. Novak. (Id.)
Ms. Novak argues that the ALJ erred in giving Dr. Fernandez’s opinions
limited weight because “it acknowledges very early-on impact Lori’s medical
conditions was (sic) having on her ability to perform past relevant work.” (Doc. 12
at 23) In relation to Dr. Schofield, Ms. Novak argues that the ALJ erred because
Dr. Schofield was “sensing not just an issue with carpal tunnel, but also issues with
the fibromyalgia subsequently diagnosed.” (Id.) The Commissioner argues that Ms.
Novak failed to make any specific argument addressing the reasons the ALJ gave
for giving Drs. Fernandez’s and Schofield’s opinions limited weight and that she
waived any other arguments by not setting them forth in her opening brief. (Doc.
13 at 18)
Although Ms. Novak may give more weight to Drs. Fernandez’s and
Schofield’s opinions than did the ALJ, that is not the test. Rather, the controlling
issues are whether the ALJ’s reasons for giving Dr. Fernandez’s opinions little
weight are supported by substantial evidence and whether these reasons are based
on legal error. Ms. Novak does not argue that the reasons the ALJ gave for
providing Drs. Fernandez’s and Schofield’s opinions limited weight are not
supported by substantial evidenced or that they are based on legal error.
The ALJ set forth the reasons for giving Drs. Fernandez’s and Schofield’s
opinions limited weight, and the Court determines that substantial evidence
supports these reasons. The Court also determines that the ALJ did not commit
legal error in doing so.
Ms. Novak argues that the ALJ’s RFC assessment is erroneous because his
credibility assessment of her testimony is not based upon substantial evidence.
(Doc. 12 at 23) In support, Ms. Novak advances the following arguments: (1) the
ALJ erred in not factoring in her fibromyalgia and narcolepsy; (2) the ALJ erred in
determining that her pain and fatigue can be explained by impairments other than
her fibromyalgia; (3) the ALJ erred in considering she does not have a prescription
for an assistive device such as a cane; (4) the ALJ ignored her testimony that her
conditions have worsened and that she has future possible surgeries to address her
orthopedic issues; (5) the ALJ erred in misapprehending the nature of her mental
conditions; and (6) the ALJ applied the new ruling (SSR 16-3p) in evaluating her
symptoms. (Id. at 23-25)
In response, the Commissioner argues the ALJ’s RFC assessment is not
erroneous because (1) the ALJ properly excluded Ms. Novak’s fibromyalgia and
narcolepsy from his RFC assessment because the former was properly determined
to not be a medically determinable impairment and the latter did not impose work
related limitations; (2) Ms. Novak failed to detail specific limitations from her
fibromyalgia and the ALJ was not required to consider any in any event because
her fibromyalgia was properly determined to be not medically determinable; (3)
there was no medical documentation of Ms. Novak’s need for an assistive device
nor the circumstances for which it was needed; (4) Ms. Novak’s testimony about
her beliefs of whether her conditions have worsened and may require surgery are
the ALJ’s responsibility to determine in assessing her RFC; (5) the ALJ did not
misapprehend Ms. Novak’s alleged disability, but rather cited to Dr. Moore’s note
discussing Ms. Novak’s difficulty in “extricating her depressive symptoms from
her pain symptoms;” (6) the ALJ properly applied the old ruling (SSR 96-7p) in
assessing Ms. Novak’s credibility. (Doc. 13 at 11-22)
In relation to the ALJ committing error in relation to Ms. Novak’s
fibromyalgia, the Court determined above that the ALJ did not error in determining
that it was not medically determinable and that the symptoms it caused could be
caused by other factors. Likewise, in relation to Ms. Novak’s narcolepsy, the
Court determined above that the ALJ did not error in this respect.
Next, in relation to Ms. Novak using an assistive device (cane), the Court
determines that the ALJ did not error because SSR 96-9 requires that “there must
be medical documentation establishing the need for a hand-held assistive device to
aid in walking. . .”
Next, the Court determines that Ms. Novak’s testimony about whether she is
getting worse and whether she will need further surgery is not binding on the ALJ
because it is the ALJ’s responsibility to determine a claimant’s overall credibility
and to assess the claimant’s RFC. Edlund v. Massinari, 253 F.3d 1152, 1156 (9th
Cir. 2001). The fact that Ms. Novak has a different view of the evidence does not
establish that the ALJ erred in assessing her RFC because where the evidence is
susceptible to more than one interpretation, as it is here, the ALJ must be affirmed.
Thomas v. Barhart, 278 F.3d 947, 954 (9th Cir. 2002).
Next, the ALJ did not misapprehend the nature of Ms. Novak’s mental
conditions. Rather, the ALJ determined that Ms. Novak was not disabled as a
result of her mental conditions and their impact on her other conditions and this is
a reasonable interpretation of the evidence. Id.
Finally, as discussed above, the ALJ properly applied SSR 96-7p in
assessing Ms. Novak’s credibility as SSR 16-3p was not effective as of the date of
the ALJ’s decision.
The ALJ’s determination is not supported by substantial evidence and is
based on legal error.
Therefore, the undersigned issues the following:
Ms. Novak’s Motion for Summary Judgment is GRANTED.
The Commissioner’s Motion for Summary Judgment DENIED.
The Commissioner's decision denying benefits to Ms. Novak is
REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and her
claim is REMANDED for additional administrative proceedings
consistent with the order.
DATED this 10th day of April 2017.
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