Mehrnoosh v. Commissioner Social Security Administration
Filing
31
OPINION AND ORDER: The Commissioner's decision is affirmed. See 18-page opinion and order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
KHADIJEH MEHRNOOSH,
Plaintiff,
No. CV-10-52-HZ
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
Alan R. Unkeles
1865 N.W. 169th Place, No. 121
Beaverton, Oregon 97006
Linda S. Ziskin
P.O. Box 2237
Lake Oswego, Oregon 97035
Attorneys for Plaintiff
Dwight C. Holton
UNITED STATES ATTORNEY
District of Oregon
1 - OPINION & ORDER
OPINION & ORDER
Adrian L. Brown
ASSISTANT UNITED STATES ATTORNEY
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
David Morado
REGIONAL CHIEF COUNSEL
Mathew W. Pile
SPECIAL ASSISTANT UNITED STATES ATTORNEY
Office of the General Counsel
Social Security Administration
701 5th Avenue, Suite 221A
Seattle, Washington 98104
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Khadijeh Mehrnoosh brings this action seeking judicial review of the
Commissioner's final decision to deny supplemental security income (SSI). This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). I affirm
the Commissioner's decision.
PROCEDURAL BACKGROUND
Plaintiff applied for SSI on October 19, 2006, alleging an onset date of November 1,
2004. Tr. 68-74.1 Her application was denied initially and on reconsideration. Tr. 38, 39. 4043, 46-47.
On May 6, 2009, plaintiff appeared, with counsel, for a hearing before an Administrative
Law Judge (ALJ). Tr. 17-37. On June 30, 2009, the ALJ found plaintiff not disabled. Tr. 7-16.
The Appeals Council denied review. Tr. 1-4.
1
Although her initial SSI application shows an alleged onset date of January 1, 2004,
subsequent forms indicate that the date is November 1, 2004, a date which plaintiff confirmed at
the administrative hearing. Tr. 23, 76, 68, 83, 87.
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FACTUAL BACKGROUND
Plaintiff alleges disability based on degenerative disc disease, a hearing abnormality,
migraines, ischemic heart disease, damaged right foot, and status/post stomach cancer with
resulting side effects and after-effects of chemotherapy. Tr. 12-13, 23-24, 27, 31 87. At the time
of the hearing, she was fifty-six years old. Tr. 21. She has a college degree, and a Master's
degree in library science, both obtained in Iran. Tr. 22. She has prior work experience as a
pharmacy technician and an interpreter. Tr. 25-26, 33, 88, 118. Because the parties are familiar
with the medical and other evidence of record, I refer to any additional relevant facts necessary to
my decision in the discussion section below.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if unable to "engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can be
expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).
Disability claims are evaluated according to a five-step procedure. See Valentine v.
Commissioner, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the ultimate burden of proving disability.
Id.
In the first step, the Commissioner determines whether a claimant is engaged in
"substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner
determines whether the claimant has a "medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the
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claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals "one
of a number of listed impairments that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d),
416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five,
the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that plaintiff had not engaged in substantial gainful
activity since her SSI application date in October 2006. Tr. 12. At step two, the ALJ determined
that plaintiff had severe impairments of cervical degenerative disc disease and status post
stomach cancer and chemotherapy. Tr. 12. At step three, the ALJ determined that plaintiff's
impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 13.
The ALJ next found that plaintiff had the following RFC: the ability to perform light
work as defined in 20 C.F.R. § 416.967(b), with the ability to lift and/or carry twenty pounds
4 - OPINION & ORDER
occasionally and ten pounds frequently, the ability to stand and/or walk with normal breaks, the
ability to sit with normal breaks about six hours in an eight-hour workday, the ability to
frequently stoop, crouch, crawl, kneel, and climb ramps and stairs, and the ability to occasionally
climb ladders. Id. As part of that determination, the ALJ considered the medical evidence and
plaintiff's hearing testimony. Tr. 13-15. As discussed in more detail below, the ALJ found
plaintiff's subjective limitations testimony not credible. Id.
At step four, and based on the RFC, the ALJ found that plaintiff could perform past
relevant work as a pharmacy technician and interpreter. Tr. 15. The ALJ did not make a step
five finding. Based on his findings, the ALJ found plaintiff not disabled. Id.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the
Commissioner's findings are based on legal error or are not supported by substantial evidence in
the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "Substantial
evidence means more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal
quotation omitted). The court considers the record as a whole, including both the evidence that
supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational
interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal
quotation and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir.
2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not
substitute [its] judgment for the ALJ's") (internal quotation omitted).
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DISCUSSION
Plaintiff contends that ALJ erred by (1) finding certain impairments non-severe at step
two, (2) finding that she did not have an impairment or combination of impairments which met
or equaled a listed impairment at step three, (3) finding plaintiff not credible, and (4) finding, at
step four, that plaintiff's interpreter work qualified as past relevant work under the Social
Security Act (SSA). Defendant concedes the step four error, but contends it was harmless.
Defendant disputes that the ALJ erred in any other finding.
I. Plaintiff's Credibility
A. Plaintiff's Hearing Testimony
Plaintiff testified that following treatment for stomach cancer, which included surgery,
chemotherapy, and radiation, and which she completed in October 2004, she never regained her
strength and as a result, she suffers from low energy. Tr. 23. Despite this, she volunteers twenty
hours per week for the State of Oregon Department of Human Services. Tr. 24. She works
helping clients fill out paperwork, typically four hours per day, five days per week, but she often
does not make it the full five days every week. Id. She takes a five to ten minute break each
hour because of fatigue. Tr. 29. She typically starts work at 8:30 a.m. and stays until 12:30 p.m.
if her health allows, and then she takes a nap at home for one to two hours. Id.
As a result of a fall in 2005, she hurt her right ankle, which, she testified, continues to be
painful with walking or standing. Tr. 26. She also stated that beginning approximately one year
prior to the hearing, making the date in May 2008, she began to suffer from migraine headaches.
Tr. 27. These occur once or twice each month, and last, at the most, three days. Tr. 27-28. She
takes Imitrex which, she explained, helps if she starts it right before the migraine begins. Tr. 28.
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She also has a heart problem that causes chest pain. Tr. 35-36.
Plaintiff testified that the main reason she cannot work is fatigue and low energy and
"aches and pains all over." Tr. 31. She can lift a few files at a time, but five is probably too
heavy for her. Her daughter goes grocery shopping with her and carries items such as a gallon of
milk, and her sister, with whom she lives, does most of the household chores. Tr. 29-30.
Plaintiff does laundry, although sometimes she has help from her sister, and helps with dishes.
Tr. 31. She is able to concentrate when writing something, but she falls asleep after half an hour
when watching television. Id.
B. The ALJ's Decision
The ALJ stated that while plaintiff's medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms, her statements regarding the
intensity, persistence, and limiting effects of her symptoms "are not credible to the extent they are
inconsistent with the above residual functional capacity assessment." Tr. 14. The ALJ explained
that the overall record and objective medical evidence did not support the alleged severity of the
symptoms and limitations. Id. Additionally, the ALJ found that her volunteer work and duties
were inconsistent with her allegations of total disability. Tr. 15. While her primary care
physician opined in September 2006 that plaintiff was capable of working six hours per day for
five days each week, the ALJ found this opinion entitled to "only some weight" in light of the
evidence of record. Id.
C. Discussion
The ALJ is responsible for determining credibility. Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2009). Once a claimant shows an underlying impairment and a causal relationship
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between the impairment and some level of symptoms, clear and convincing reasons are needed to
reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Commissioner,
533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is
malingering, "where the record includes objective medical evidence establishing that the
claimant suffers from an impairment that could reasonably produce the symptoms of which he
complains, an adverse credibility finding must be based on 'clear and convincing reasons'").
When determining the credibility of a plaintiff's complaints of pain or other limitations,
the ALJ may properly consider several factors, including the plaintiff's daily activities,
inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and
relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may
also consider the ability to perform household chores, the lack of any side effects from prescribed
medications, and the unexplained absence of treatment for excessive pain. Id.
Additionally, the ALJ may consider objective medical evidence in determining a
claimant's credibility regarding subjective symptom testimony, as long as the ALJ does not reject
such testimony solely because it is unsubstantiated by the objective medical evidence. 20 C.F.R.
§ 416.929(c); Rollins v. Massanari, 261 F.3d 853, 856, 857 (9th Cir. 2001) (“Once a claimant
produces objective medical evidence of an underlying impairment, an ALJ may not reject a
claimant's subjective complaints based solely on a lack of objective medical evidence to fully
corroborate the alleged severity of pain[;] . . . . While subjective pain testimony cannot be
rejected on the sole ground that it is not fully corroborated by objective medical evidence, the
medical evidence is still a relevant factor in determining the severity of the claimant's pain and its
disabling effects.”) (internal quotation and brackets omitted) .
8 - OPINION & ORDER
Plaintiff contends that the ALJ erred because he failed to give specific reasons for
rejecting plaintiff's testimony and because his credibility assessment is legally unsupportable. As
for the latter, plaintiff contends that the ALJ engaged in circular reasoning when he stated that
the "claimant's symptoms concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above residual functional
capacity assessment." Tr. 14. Had the ALJ not discussed specific reasons supporting this
statement in subsequent paragraphs of his opinion, I would agree with plaintiff. It would, in fact,
be improper and untenable to reject plaintiff's symptoms as inconsistent with an RFC when the
RFC is the product of, not the basis for, the credibility assessment.
But here, the ALJ followed this statement with three reasons for rejecting plaintiff's
testimony: it was not supported by the objective medical evidence, it was not supported by the
overall record, and it was inconsistent with plaintiff's volunteer work. As for the objective
medical evidence, the ALJ cited to several specific pages in the record supporting his finding that
plaintiff's physical examinations following her cancer treatment were grossly normal, she was
consistently found to be doing well, and had no evidence of recurrent disease. Id. The ALJ cited
to reports of plaintiff's treating physicians indicating that her energy was better. Id. Notably, in
one of the exhibits cited by the ALJ, Dr. Lewis, plaintiff's treating oncologist, stated that in
January 2005, plaintiff was interested in having Dr. Lewis release her from doing a "job work"
program, but Dr. Lewis "believe[d] her energy level [was] adequate at this time to be able to
participate in such activities." Tr. 274 (Exh. 3F). The ALJ also cited to normal x-rays of
plaintiff's spine. Tr. 15.
Additionally, the ALJ discussed that plaintiff's volunteer work for the Department of
9 - OPINION & ORDER
Human Services for up to twenty hours per week for more than two years, which included
helping clients fill out applications, answering phones, setting up files for caseworkers, and
assisting workers there, was inconsistent with her testimony that she was totally disabled. Tr. 15.
As indicated above, an ALJ may properly reject plaintiff's subjective testimony if it is
inconsistent with a claimant's daily activities.
The ALJ's reference to the "overall record" is vague and unhelpful. It is also inconsistent
with well-established caselaw requiring the ALJ to provide specific reasons for disbelieving a
claimant. E.g., Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (ALJ must provide
"specific, cogent" reasons for discrediting testimony). Nonetheless, because the ALJ did not rely
solely on the lack of objective medical evidence in rejecting plaintiff's testimony, but also noted
her ability to volunteer at least twenty hours per week, his opinion is supported by substantial
evidence in the record and his credibility determination was not error.
II. Step Two Severity Finding
Plaintiff argues that the ALJ erred at step two because he improperly found several
impairments to be non-severe, and he ignored plaintiff's hearing impairment. The ALJ found
plaintiff's right ankle disorder, migraine headaches, and exercise-induced ischemia to be nonsevere impairments. In her discussion, plaintiff focuses her argument only on the ALJ's nonseverity finding regarding her migraines.
The ALJ explained that at the hearing, plaintiff testified that her migraine symptoms were
controlled with Imitrex. Tr. 12. He then stated that because there was no objective medical
evidence to show that the impairment caused significant vocational limitations for at least twelve
consecutive months, the migraine headaches were not a severe impairment. Tr. 12-13.
10 - OPINION & ORDER
The ALJ considers the severity of the claimant's impairment(s) at step two. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant does not have a severe medically
determinable physical or mental impairment that meets the duration requirement, or a
combination of impairments that is severe and meets the duration requirement, the claimant is
not disabled. Id.
A severe impairment is one that significantly limits the claimant's physical or mental
ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). "Basic work
activities" are the abilities and aptitudes necessary to do most jobs, including physical functions
such as walking, standing, sitting, and lifting. 20 C.F.R. §§ 404.1521(b), 416.921(b). In Social
Security Ruling (SSR) 96-3p (available at 1996 WL 374181, at *1), the Commissioner has
explained that "an impairment(s) that is 'not severe' must be a slight abnormality (or a
combination of slight abnormalities) that has no more than a minimal effect on the ability to do
basic work activities."
Plaintiff contends that her treating doctors have documented her migraine headaches on
several occasions. But, the records she cites do not fully support her assertion, nor do other
records in the administrative record.
The first record cited by plaintiff is a September 1, 2006 clinic visit note by primary care
provider Dr. Ezra Azhar, M.D., which contains no report of any subjective complaint of
headache pain, and no indication on objective examination of any headache or neurological
findings revealing any headache or migraine-related impairment. Tr. 130. The assessment
portion of the record includes "Headache #346.11" which may or may not refer to migraines. Id.
There is no indication of a longstanding problem or of medication being prescribed for the
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problem. Id. In the section for "plan," plaintiff had a head CT scheduled for September 5, 2006.
Id. The other record cited by plaintiff is the report of the September 5, 2006 head CT which
states, under "clinical history," "[c]onstant headaches times three weeks, no trauma" and which
found no abnormalities, resulting in a negative exam. Tr. 309. The clinical history section of
that record does not refer to the headaches as being migraine headaches. Id.
Additionally, aside from the September 1, 2006 clinic visit to Dr. Azhar, there appear to
be only three other mentions by plaintiff to Dr. Azhar of her headaches. On December 20, 2005,
plaintiff stated she had been getting headaches. Tr. 141. Yet, there are no objective findings, Dr.
Azhar's assessment fails to indicate any headache-related diagnosis, and there is no mention of
any headache-related diagnostics, treatment, or medication in the "plan" section of his chart note.
Id. On March 28, 2006, plaintiff again reported headaches, but, as with the December 20, 2005
visit, there are no objective findings, no assessment of any headache-related diagnosis, and no
mention of any headache-related treatment. Tr. 138. On May 30, 2006, plaintiff complained of a
headache for two days. Tr. 135. No other subjective report of the condition is noted, and there
are no relevant objective findings. Id. The assessment section refers to "Headache #346.11," but
there is nothing related to her headaches in the "plan" section of the clinic visit note. Id.
Notably, despite subsequently seeing Dr. Azhar on June 21, 2006, June 30, 2006, August 25,
2006, and October 2, 2006, the chart notes do not show that plaintiff ever mentioned her
headache on any of those occasions. Tr. 129-34.
Additionally, while there is one mention in March 2005 to Dr. Lewis, her treating
oncologist, of intermittent headaches which had been improving, Tr. 273, chart notes from
subsequent visits to Dr. Lewis, including some during the same period of time in which she
12 - OPINION & ORDER
complained to Dr. Azhar about headache pain, show that plaintiff denied headaches. Tr. 267
(May 6, 2005), 284 (Nov. 21, 2005), 174 (Feb. 13, 2006) , 169 (May 9, 2006), 165 (Aug. 7,
2006). Plaintiff overstates the record when she argues that her treating doctors have documented
her migraine headaches on several occasions. As the ALJ noted, there is no objective medical
evidence to show that the alleged migraine headaches caused significant vocational impairment
at any time, much less for the twelve-month required duration.
Plaintiff contends that the lack of an objective cause is typical of migraine headaches and
thus, the ALJ's finding that there are no objective medical records to support a finding that the
migraine impairment is severe, is not supportable. See Ortega v. Chater, 933 F. Supp. 1071,
1075 (S.D. Fla.1996) (explaining that present-day laboratory tests cannot prove the existence of
migraine headaches). But, while there may not be a laboratory or blood test to confirm a
migraine disorder, and it may be that radiologic studies do not always reveal an objectivelydefined source of migraine pain, it is possible to present objective-like evidence to establish the
severity of the claimed impairment such as the treating physician's personal observations of any
physical manifestations of pain, chart notes reflecting ongoing attempts at treatment with
medication(s), trips to the emergency room or hospital admissions for disabling migraine pain, a
record of associated symptoms, or other similar evidence. See Id. (although no laboratory test
could confirm presence of severe migraines, claimant's doctor "set forth the medical signs and
symptoms sufficient to justify the diagnosis and treatment of migraine headaches" including
"nausea, vomiting, photophobia, dizzy spells, and black outs" many of which "are, in fact,
medical signs which are associated with severe migraine headaches."). No evidence of this type
is in the record. Moreover, the mere diagnosis of a condition “says nothing about the severity of
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the condition.” Higqs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). Additionally, courts have
regularly upheld an ALJ's determination that claimed migraine pain was not severe or disabling
because of the lack of objective medical evidence. E.g., McCormick v. Secretary of Health and
Human Servs., 861 F.2d 998, 1002-03 (6th Cir.1988) (affirming the Secretary's denial of benefits
to a claimant who was unable to “introduce objective medical evidence to support the existence
of [her] alleged migraine headaches”); Allen v. Astrue, No. 09-1508, 2011 WL 9609, at *7
(W.D. Pa. Jan 3, 2011) (ALJ properly found no objective evidence of migraines when MRI and
other radiologic tests showed no abnormality). Based on the record, the ALJ did not err in
concluding that there was no objective, or objective-like, evidence in the record supporting a
finding of severe migraines.
The ALJ also noted that plaintiff's migraines were controlled with Imitrex. Tr. 12.
Plaintiff argues that this statement misconstrues her testimony. Plaintiff testified that the
medication helps if she takes it at the right time before the headache starts, and she sometimes
takes it anyway even if it is too late. Tr. 28. While the ALJ possibly overstated the effect of the
medication by using the word "controlled," the claimant bears the burden at step two to
demonstrate that the impairment is severe. Without additional evidence regarding how
frequently the medication produces, or fails to produce, symptom relief, I cannot conclude that
the ALJ's interpretation of her testimony is error. See Tommasetti v. Astrue, 533 F.3d 1035,
1038 (9th Cir.2008) (recognizing that “[t]he court will uphold the ALJ's conclusion when the
evidence is susceptible to more than one rational interpretation”).
Plaintiff also argues that even if the migraines are not a severe impairment, the ALJ must
still consider the effects and limitations of all impairments on her RFC. 20 C.F.R. § 416.945(e).
14 - OPINION & ORDER
Here, however, the only evidence of the impact of plaintiff's migraines on her functional capacity
is plaintiff's own testimony, which the ALJ discredited. Thus, the ALJ did not err in failing to
incorporate plaintiff's alleged migraine-related symptoms into the RFC.
Next, plaintiff argues that the ALJ completely ignored evidence of her hearing loss,
making no finding as to the existence and severity of this impairment. The medical record
contains the following references to plaintiff's hearing loss: (1) a statement in a September 12,
2005 letter to Dr. Azhar from cardiologist Dr. Todd A. Caulfield, M..D., regarding the results of
an exercise stress test, that plaintiff's past medical history included right-sided hearing loss; Tr.
229; and (2) a statement in a June 24, 2005 letter to Dr. Azhar from otolaryngologist Dr. Edsel U.
Kim, M.D., that plaintiff had a "long history of right-sided hearing loss and tinnitus" which
plaintiff believed may be related to stress. Tr. 265. Dr. Kim saw plaintiff for complaints of
consistent bilateral ear pain. Id. He diagnosed her with temporomandibular joint disorder. Id.
Defendant concedes that the ALJ failed to mention the hearing loss in his decision.
Defendant argues that first, this was not error because the ALJ need discuss only significant,
probative evidence, and two reports in the record which refer to a past medical history of hearing
loss do not establish, without more, any specific functional limitations. Alternatively, defendant
argues that any error was harmless because as plaintiff acknowledges in her argument, the
alleged impairment would have likely only affected plaintiff's ability to work as an interpreter.
Because defendant no longer relies on that past work in defending the ALJ's decision, any error
made by the ALJ has no effect on the determination at step four. Because I agree with defendant
as to its alternative argument, I do not address its former argument.
Assuming the ALJ erred in failing to discuss hearing loss, any such error was harmless.
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Plaintiff contends that the hearing impairment "would likely" impact her ability to sustain work
as an interpreter. Pltf's Op. Mem. at p. 11. As the ALJ in this case resolved the disability
analysis at step four, the burden to establish disability remained on plaintiff. Plaintiff failed to
set forth evidence at her hearing, or point to evidence in the record, documenting the actual
hearing loss (as opposed to a reference to a past medical history of such loss), the degree of the
hearing loss, and more importantly, documenting the actual functional limitations caused by the
impairment. Thus, at this point, plaintiff's argument that the hearing impairment "would likely"
impact her ability to perform any occupation is supposition. In any event, the ALJ’s failure to
discuss the hearing loss is harmless because defendant no longer relies on the interpreter
occupation for past relevant work.
In summary, the ALJ did not commit error at step two, or alternatively, if he did, the error
was harmless.
III. Step Three Listed Impairment Finding
Plaintiff argues that the ALJ failed to conduct a proper step three analysis because even
non-severe impairments must be considered in determining if she met or equaled a listed
impairment. Additionally, she argues that the ALJ failed to fully consider the effects of her
chemotherapy and radiation treatment when assessing the equivalence to a listed impairment.
The ALJ analyzed plaintiff's back symptoms under Listing 1.04, regarding disorders of
the spine. Tr. 13. The ALJ concluded that those symptoms did not meet or medically equal
Listing 1.04 because there was "no objective medical evidence showing upper or lower extremity
muscle weakness, reflex loss or objective sensory deficit, motor loss, or positive straight leg
raise." Id.; see 20 C.F.R. Pt. 404, Subpt. P., App. 1, Listing 1.04. Plaintiff states that the ALJ
16 - OPINION & ORDER
failed to consider that plaintiff's degenerative disc disease is in her cervical spine.
I disagree. The ALJ specifically referred to upper extremity deficits in his analysis,
indicating that he considered the cervical region of the spine in his discussion. Additionally,
plaintiff, who bears the burden of proof at step three, fails to cite to evidence in the record
supporting her argument that her cervical spine disorder was severe enough to meet or equal the
requirements of Listing 1.04.
As for the side effects of her chemotherapy and radiation treatment, plaintiff fails to
identify any particular listing she contends the ALJ should have discussed, and she fails to cite,
other than her subjective testimony, any other evidence documenting her ongoing fatigue and
lack of stamina. The ALJ did not err at step three.
IV. Step Four Finding
Plaintiff argues that the ALJ erred by concluding that plaintiff's past work as an
interpreter was past relevant work (PRW). Prior work is not PRW unless it is performed at a
substantial gainful activity (SGA) level. See 20 C.F.R. §§ 404.1565(a), 416.965(a).
(PRW is work that was performed in the last fifteen years, lasting long enough for the claimant to
learn the work, and which qualifies as “substantial gainful activity”); 20 C.F.R. §§ 404.1510,
416.910 (substantial gainful activity is work that involves doing significant and productive
physical and mental duties, and is done, or intended, for pay or profit).
Defendant concedes that plaintiff's interpreter work was not PRW, and abandons reliance
on that occupation at step four. However, the ALJ also found that plaintiff could perform her
PRW as a pharmacy technician. Tr. Tr. 15-16. Plaintiff argues that the ALJ erred in this finding
because plaintiff testified it entailed "a lot of standing and running around" which plaintiff could
17 - OPINION & ORDER
no longer do after injuring her foot or ankle in the fall of 2005. Tr. 24. Plaintiff notes that the
RFC finding that plaintiff can perform light work, entailing the ability to stand and walk for six
out of eight hours, and the finding that she could perform the pharmacy technician job at the light
exertional level, is inconsistent with her testimony.
But, as explained above, the ALJ did not err in rejecting plaintiff's subjective testimony.
Thus, the ALJ did not err in concluding that plaintiff could perform her PRW as a pharmacy
technician based on her age, education, work experience, and her RFC.
Finally, given the lack of error at step four, there is no basis to apply the MedicalVocational Guidelines which is part of the step five analysis. See Bray v. Commissioner, 554
F.3d 1219, 1223. n.4 (9th Cir. 2009) (in making step five determination, ALJ may rely on
Medical-Vocation Guidelines, (the "decisional grids")). Because the ALJ's analysis concluded at
step four, the grids are inapplicable.
CONCLUSION
The Commissioner's decision is affirmed.
IT IS SO ORDERED.
Dated this 31st
day of May
/s/ Marco A. Hernandez
Marco A Hernandez
United States District Judge
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, 2011
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