Sheila M Johnson v. Michael J Astrue, No. 2:2007cv07263 - Document 20 (C.D. Cal. 2008)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that the decision of the Commissioner is REVERSED and REMANDED for further proceedings. (READ ATTACHED FOR DETAILS) (esa)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 SHEILA M. JOHNSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ______________________________) NO. CV 07-7263 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Sheila M. Johnson( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 her 25 Supplemental Security Income ( SSI ). 26 to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United 27 States Magistrate Judge. 28 the Commissioner is REVERSED and REMANDED. application for Disability Insurance Benefits ( DIB ) and The parties consented, pursuant For the reasons stated below, the decision of 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for SSI on May 8, 2001 5 (Administrative Record ( AR ) 72-81). She alleged a disability onset 6 date of June 1, 1996 (AR 72) due to bleeding hemorrhoids, anemia, Lupus, 7 and pain in her back, neck, leg and right side of her body. 8 55). (AR 30, 9 10 The Agency denied Plaintiff s claim for SSI initially on October 11 18, 2001. 12 ( ALJ ) Ariel Sotolongo conducted a hearing to review Plaintiff s claim. 13 (AR 65). 14 Plaintiff sought review of the ALJ s decision before the Appeals 15 Council, which denied her request on November 10, 2003. (AR 54). On September 17, 2002, Administrative Law Judge The ALJ denied benefits on December 19, 2002. (AR 19-23). (AR 5). 16 17 Thereafter, Plaintiff sought judicial review of the ALJ s decision. 18 (AR 311-23). 19 matter for further administrative proceedings on the grounds that the 20 ALJ the ALJ 21 erroneously relied upon the opinion of the consultative examiner. (AR 22 321-23). On October 27, 2004, this Court reversed and remanded the improperly evaluated Plaintiff s credibility, and 23 24 On December 22, 2003, Plaintiff filed an application for Disability 25 Insurance Benefits ( DIB ). 26 filed a second application for SSI. 27 applications, Plaintiff alleged a disability onset date of January 1, 28 2000. (AR 378, 383). (AR 383-85). On June 28, 2004, Plaintiff (AR 378-82). For both of these On August 15, 2004, the Commissioner denied the 2 1 application for benefits. (AR 365-69). 2 Plaintiff requested a hearing before an ALJ. On September 14, 2004, (AR 307). 3 ALJ Alexander Weir III consolidated all of Plaintiff s three filed 4 5 applications. 6 hearing, where Plaintiff, a vocational expert, and a medical expert 7 provided testimony. 8 decision on March 28, 2007 again denying benefits. 9 Plaintiff requested a review of the ALJ decision (AR 286), and the 10 (AR 296-97). On March 22, 2007, the ALJ held a remand (AR 550-602). The ALJ issued an unfavorable Appeals Council denied review on September 26, 2007. (AR 293-305). (AR 248-50). 11 Therefore, the ALJ s decision became the final decision of the 12 13 Commissioner. (Id.). 14 November 13, 2007. Plaintiff commenced the instant action on 15 16 III. 17 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 18 19 To qualify for disability benefits, a claimant must demonstrate 20 a medically determinable physical or mental impairment that prevents him 21 from engaging in substantial gainful activity1 and that is expected to 22 result in death or to last for a continuous period of at least twelve 23 months. 24 42 U.S.C. § 423(d)(1)(A)). 25 incapable of performing the work he previously performed and incapable Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 3 1 of performing any other substantial gainful employment that exists in 2 the national economy. 3 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 4 5 To decide if a claimant is entitled to benefits, an ALJ conducts 6 a five-step inquiry. 7 follows: 20 C.F.R. §§ 404.1520, 416.920. The steps are as 8 9 (1) Is the claimant presently engaged in substantial gainful 10 activity? If so, the claimant is found not disabled. 11 If not, proceed to step two. 12 13 (2) Is the claimant s impairment 14 claimant is found not disabled. 15 severe? If not, the three. If so, proceed to step 16 17 (3) Does the claimant s impairment meet or equal one of a 18 list of specific impairments described in 20 C.F.R. Part 19 404, Subpart P, Appendix 1? 20 found disabled. If so, the claimant is If not, proceed to step four. 21 22 (4) Is the claimant capable of performing her past work? 23 so, the claimant is found not disabled. 24 If If not, proceed to step five. 25 26 (5) Is the claimant able to do any other work? 27 claimant is found disabled. 28 found not disabled. 4 If not, the If so, the claimant is 1 2 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 3 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 4 Cir. 2001) (citations omitted). 5 The claimant has the burden of proof at steps one through four, and 6 7 the Commissioner has the burden of proof at step five. Bustamante, 262 8 F.3d at 953-54. 9 establishing an inability to perform past work, the Commissioner must 10 show that the claimant can perform some other work that exists in 11 significant numbers in the national economy, taking into account the 12 claimant s residual functional capacity ( RFC ),2 age, education, and 13 work experience. 14 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 15 do so by the testimony of a VE or by reference to the Medical-Vocational 16 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 17 (commonly known as the Grids ). 18 1162 (9th Cir. 2001). 19 related) and nonexertional limitations, the Grids are inapplicable and 20 the ALJ must take the testimony of a VE. 21 869 (9th Cir. 2000). 22 /// 23 /// 24 /// If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner may Osenbrock v. Apfel, 240 F.3d 1157, When a claimant has both exertional (strength- Moore v. Apfel, 216 F.3d 864, 25 26 27 28 2 Residual functional capacity is the most [one] can still do despite [one s] limitations and represents an assessment based on all the relevant evidence in [one s] case record. 20 C.F.R. §§ 404.1545(a), 416.945(a). 5 1 IV. 2 THE ALJ S DECISION 3 4 The ALJ employed the five-step sequential evaluation process and 5 concluded that Plaintiff was not disabled within the meaning of the 6 Social Security Act. 7 that Plaintiff had not engaged in substantial gainful activity since the 8 filing date of her application. 9 Plaintiff had the severe impairments of systemic lupus erythematosus3 10 ( Lupus or SLE ), mild anemia, a history of knee and hip pain, a 11 benign hard palette and hemorrhoids. (AR 304-05). At the first step, the ALJ observed (AR 299). Next, he found that (AR 299-302, 304). 12 13 At the third step, the ALJ found that the severe and non-severe 14 impairments at step two did not meet or medically equal a listed 15 impairment. (AR 302). Next, at step four, the ALJ found that Plaintiff 16 could no longer perform her past work, but she retained the RFC to 17 perform work with restrictions. 18 Plaintiff could lift and carry twenty pounds occasionally and ten pounds 19 frequently, sit for six hours, and stand or walk for six hours, with 20 normal breaks, in an eight hour day. (AR 304). The ALJ also found that (AR 302-04). The ALJ found that 21 22 23 24 25 26 27 28 3 Systemic lupus erythematosus ( Lupus )is defined as: a chronic, remitting, relapsing, inflammatory, often febrile multisystemic disorder of connective tissue, accute or insidious in onset, characterized principally by involvement of the skin, . . . joints, kidneys, and serosal membranes. It is of unknown etiology, but it is thought to represent a failure of regulatory mechanisms of the autoimmune system, as suggested by the high level of numerous autoantibodies against nuclear and cyptoplasmic cellular components. Dorland s Illustrated Medical Dictionary, 1072 (30th ed. 2003). 6 1 she can push and pull commensurate with her lifting ability without any 2 significant limitations. (Id.). 3 4 Finally, at step five, the ALJ concluded that, based on Plaintiff s 5 RFC and the testimony of the VE, Plaintiff could perform work her past 6 relevant work as a cafeteria worker. (Id.). Accordingly, the ALJ found 7 that Plaintiff was not disabled, as defined in the Social Security Act, 8 at any time through the date of the decision. (AR 305). 9 10 V. 11 STANDARD OF REVIEW 12 13 Under 42 U.S.C. § 405(g), a district court may review the 14 Commissioner s decision to deny benefits. 15 Commissioner s decision when the ALJ s findings are based on legal error 16 or are not supported by substantial evidence in the record as a whole. 17 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 18 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). The court may set aside the 19 Substantial evidence is more than a scintilla, but less than a 20 Reddick, 157 F.3d at 720. It is relevant evidence 21 preponderance. 22 which a reasonable person might accept as adequate to support a 23 conclusion. 24 a finding, the court must consider the record as a whole, weighing 25 both 26 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 27 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 28 reasonably support either affirming or reversing that conclusion, the evidence Id. To determine whether substantial evidence supports that supports and evidence 7 that detracts from the If the evidence can 1 court may not substitute its judgment for that of the Commissioner. 2 Reddick, 157 F.3d at 720-21. 3 4 VI. 5 DISCUSSION 6 7 Plaintiff contends that the ALJ erred by failing to consider 8 various instances in the medical record indicating periods of active 9 Lupus to assess Plaintiff s RFC. (Joint Stipulation ( Jt. Stip. ) at 10 4-8). Plaintiff further argues that the ALJ erred by relying solely 11 upon the testimony of the medical expert to determine that Plaintiff s 12 Lupus is inactive. 13 agrees with Plaintiff s contention. (Id.). For the reasons discussed below, the Court 14 15 The medical record includes Plaintiff s clinical reports from over 16 a dozen visits to the Harbor UCLA Medical Center ( Harbor ) from August 17 16, 2001 through March 25, 2004, due to her lupus. 18 August 16, 2001, the attending physician noted a possible diagnosis of 19 Lupus and indicated that Plaintiff reported symptoms of fatigue, pain, 20 and weakness. 21 stated 22 [decreased white blood cell] count, continual fatigue, and athryalgias. 23 (AR 514). 24 improved symptoms due to the Lupus medication on October 13, 2002. 25 However, from December 26, 2002 through August 14, 2003, the Harbor 26 clinical reports indicated extreme fatigue, myalgia or muscular pain, 27 and fatigue due to Lupus. that (AR 522-24). Plaintiff (AR 492-534). On On March 1, 2002, the attending physician has continual symptoms including anemia, The attending physician noted that Plaintiff exhibited (AR 501, 503, 506, 508). 28 8 1 On November 11, 2003, the attending physician noted that Plaintiff 2 still reported symptoms of fatigue and myalgia, but were less than 3 before. 4 on January 20, 2004. 5 report indicated that Plaintiff s Lupus was clinically quiescent. 6 494). (AR 495). Plaintiff s Lupus was reported clinically stable (AR 493). On March 25, 2004, the Harbor clinical (AR 7 8 On March 22, 2007, Dr. Harvey Alpern, a medical expert, testified 9 at a hearing before ALJ Weir. (AR 557-65). After reviewing the medical 10 record and hearing Plaintiff s testimony, Dr. Alpern indicated that 11 Plaintiff s Lupus was quiescent or inactive. 12 later testified that Lupus can wax and wane, or go into remission for 13 many years and later flare up. 14 that Plaintiff retained the ability to perform work at a light RFC. (AR 15 561). (AR 561-65). (AR 559). Dr. Alpern Thus, Dr. Alpern opined 16 17 Here, the ALJ must consider whether Plaintiff is eligible for a 18 closed period of disability during the instances where her Lupus was 19 active. 20 engage in any substantial gainful activity by reason of any medically 21 determinable physical or mental impairment which can be expected to 22 result in death or which has lasted or can be expected to last for a 23 continuous period of not less than twelve months. 24 404.1505(a). In Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995), the 25 court stated, Occasional symptom-free periods- and even the sporadic 26 ability to do work- are not inconsistent with disability. Under the regulations, a person is disabled if he is unable to 27 28 9 20 C.F.R. § 1 Additionally, nonexamining physician s opinions with nothing more 2 cannot constitute substantial evidence. Andrews v. Shalala, 53 F.3d 3 1035, 1042 (9th Cir. 1994). 4 opinions of nonexamining sources and medical advisors are entitled to 5 little or no weight. 6 need not be discounted and may serve as substantial evidence when they 7 are supported by other evidence in the record and are consistent with 8 it. However, this does not mean that the Id. at 1041. Reports of a nonexamining advisor Id. 9 10 Moreover, the ALJ cannot reach a conclusion first, and then attempt to 11 justify it by ignoring competent evidence in the record that suggests an 12 opposite result. Gallant v. Heckler, 753 F.2d 1450, 1455-56 (9th Cir. 1984). 13 See 14 (impermissible for ALJ to develop evidentiary basis by not fully accounting 15 for the context of materials or all parts of the testimony and reports ). also Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) 16 17 Despite the existence of the Harbor clinical reports in the medical 18 record, the ALJ relied upon the opinion of Dr. Alpern to determine that 19 Plaintiff s 20 medication. (AR 301). Thus, the ALJ opined that although the claimant 21 had SLE [Lupus] . . . the medical evidence did not indicate that the 22 claimant would have limitations from this condition sufficient to meet 23 or equal the criteria of a listed impairment. Lupus was quiescent and treatable with appropriate (Id.). 24 25 However, the Harbor clinical reports clearly demonstrate that 26 Plaintiff suffered from Lupus or symptoms of Lupus from August 16, 2001 27 through November 11, 2003. 28 less than twelve months, and thus, the ALJ should have considered (AR 495-524). 10 This period of time is not 1 whether Plaintiff qualified for SSI and DIB during this closed period 2 of disability. 3 F.3d at 833. 4 testimony of Dr. Alpern, who had not considered all the relevant and 5 material facts, namely the Harbor clinical reports. 6 v. Shalala, 5 F.3d at 1041. 7 the Harbor clinical reports, which indicated that Plaintiff may have 8 suffered from Lupus for approximately two years. 9 F.2d at 1455-56; see also Reddick v. Chater, 157 F.3d at 722-23. 20 C.F.R. § 404.1505(a); see also Lester v. Chater, 81 In assessing Plaintiff s RFC, the ALJ relied upon the (AR 301). Andrews Thus, the ALJ erred by failing to address Gallant v. Heckler, 753 Therefore, 10 the ALJ s failure to consider whether Plaintiff was eligible for a 11 closed period of disability warrants remand. 12 13 14 15 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 11 1 2 VII. 3 CONCLUSION 4 5 Consistent with the foregoing, and pursuant to sentence four of 42 6 U.S.C. § 405(g),4 IT IS ORDERED that the decision of the Commissioner 7 is REVERSED and REMANDED for further proceedings. IT IS FURTHER ORDERED 8 that the Clerk of the Court serve copies of this Order and the Judgment 9 on counsel for both parties. 10 11 DATED: December 2, 2008. 12 /S/ 13 ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 12

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