(SS)Garcia v. Commissioner of Social Security, No. 1:2008cv01799 - Document 19 (E.D. Cal. 2010)
Court Description: DECISION and ORDER DENYING Plaintiff's 1 Social Security Complaint; ORDER DIRECTING the Entry of Judgment for Defendant Michael J. Astrue, Commissioner of Social Security, and Against Plaintiff Beverly Jean Garcia signed by Magistrate Judge Sandra M. Snyder on 4/1/2010. CASE CLOSED.(Bradley, A)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 BEVERLY JEAN GARCIA, 10 Plaintiff, 11 v. 12 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL 13 SECURITY, 14 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-01799-SMS DECISION AND ORDER DENYING PLAINTIFF S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF BEVERLY JEAN GARCIA 16 Plaintiff is proceeding in forma pauperis and with counsel 17 with an action seeking judicial review of a final decision of the 18 Commissioner of Social Security (Commissioner) denying 19 Plaintiff s application of November 2, 2005, made pursuant to 20 Title XVI of the Social Security Act (the Act), for supplemental 21 security income (SSI), in which she had alleged that she had been 22 disabled since November 1, 2004, due to trouble breathing and 23 pain in her knee when she sat, stood, bent her knee, or walked. 24 (A.R. 100-106, 129.) The parties have consented to the 25 jurisdiction of the United States Magistrate Judge pursuant to 28 26 U.S.C. § 636(c)(1), manifesting their consent in writings signed 27 by the parties authorized representatives and filed on behalf of 28 1 1 Plaintiff on December 3, 2008, and on behalf of Defendant on 2 December 10, 2008. Thus, the matter is assigned to the Magistrate 3 Judge to conduct all further proceedings in this case, including 4 entry of final judgment. 5 The decision under review is that of Social Security 6 Administration (SSA) Administrative Law Judge (ALJ) Michael J. 7 Haubner, dated March 27, 2008 (A.R. 8-13), rendered after a 8 hearing held on January 17, 2008, at which Plaintiff appeared and 9 testified with the assistance of an attorney (A.R. 14-40). A 10 vocational expert also testified. 11 The Appeals Council denied Plaintiff s request for review of 12 the ALJ s decision on September 26, 2008 (A.R. 1-3), and 13 thereafter Plaintiff filed the complaint in this Court on 14 November 20, 2008. Briefing commenced on September 2, 2009, and 15 was completed with the filing of Defendant s brief on Ocober 5, 16 2009. The matter has been submitted without oral argument to the 17 Magistrate Judge. 18 I. Jurisdiction 19 The Court has jurisdiction over the subject matter of this 20 action pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g), which 21 provide that an applicant suffering an adverse final 22 determination of the Commissioner of Social Security with respect 23 to SSI benefits after a hearing may obtain judicial review by 24 initiating a civil action in the district court within sixty days 25 of the mailing of the notice of decision. Plaintiff filed his 26 complaint on November 20, 2008, less than sixty days after the 27 mailing of the notice of decision on or about September 26, 2008. 28 /////// 2 1 II. Standard and Scope of Review 2 Congress has provided a limited scope of judicial review of 3 the Commissioner's decision to deny benefits under the Act. In 4 reviewing findings of fact with respect to such determinations, 5 the Court must determine whether the decision of the Commissioner 6 is supported by substantial evidence. 42 U.S.C. § 405(g). 7 Substantial evidence means "more than a mere scintilla," 8 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 9 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable 11 mind might accept as adequate to support a conclusion." 12 Richardson, 402 U.S. at 401. The Court must consider the record 13 as a whole, weighing both the evidence that supports and the 14 evidence that detracts from the Commissioner's conclusion; it may 15 not simply isolate a portion of evidence that supports the 16 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 17 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 18 It is immaterial that the evidence would support a finding 19 contrary to that reached by the Commissioner; the determination 20 of the Commissioner as to a factual matter will stand if 21 supported by substantial evidence because it is the 22 Commissioner s job, and not the Court s, to resolve conflicts in 23 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 24 Cir. 1975). 25 In weighing the evidence and making findings, the 26 Commissioner must apply the proper legal standards. Burkhart v. 27 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 28 review the whole record and uphold the Commissioner's 3 1 determination that the claimant is not disabled if the 2 Commissioner applied the proper legal standards, and if the 3 Commissioner's findings are supported by substantial evidence. 4 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 5 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 6 the Court concludes that the ALJ did not use the proper legal 7 standard, the matter will be remanded to permit application of 8 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 9 Cir. 1987). 10 11 12 III. Disability A. Legal Standards In order to qualify for benefits, a claimant must establish 13 that she is unable to engage in substantial gainful activity due 14 to a medically determinable physical or mental impairment which 15 has lasted or can be expected to last for a continuous period of 16 not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). A 17 claimant must demonstrate a physical or mental impairment of such 18 severity that the claimant is not only unable to do the 19 claimant s previous work, but cannot, considering age, education, 20 and work experience, engage in any other kind of substantial 21 gainful work which exists in the national economy. 42 U.S.C. 22 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 23 Cir. 1989). The burden of establishing a disability is initially 24 on the claimant, who must prove that the claimant is unable to 25 return to his or her former type of work; the burden then shifts 26 to the Commissioner to identify other jobs that the claimant is 27 capable of performing considering the claimant's residual 28 functional capacity, as well as her age, education and last 4 1 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 2 1273, 1275 (9th Cir. 1990). 3 The regulations provide that the ALJ must make specific 4 sequential determinations in the process of evaluating a 5 disability: 1) whether the applicant engaged in substantial 6 gainful activity since the alleged date of the onset of the 7 impairment, 2) whether solely on the basis of the medical 8 evidence the claimed impairment is severe, that is, of a 9 magnitude sufficient to limit significantly the individual s 10 physical or mental ability to do basic work activities; 3) 11 whether solely on the basis of medical evidence the impairment 12 equals or exceeds in severity certain impairments described in 13 Appendix I of the regulations; 4) whether the applicant has 14 sufficient residual functional capacity, defined as what an 15 individual can still do despite limitations, to perform the 16 applicant s past work; and 5) whether on the basis of the 17 applicant s age, education, work experience, and residual 18 functional capacity, the applicant can perform any other gainful 19 and substantial work within the economy. See 20 C.F.R. § 416.920.1 20 21 B. The ALJ s Findings The ALJ found that Plaintiff had severe impairments of 22 asthma, chronic obstructive pulmonary disease, and chronic 23 smoking, but Plaintiff had no impairment or combination thereof 24 that met or medically equaled a listed impairment. (A.R. 10.) 25 Plaintiff retained an unlimited exertional capacity to perform 26 work, but she must avoid concentrated exposure to pulmonary 27 28 1 All references to the Code of Federal Regulations are to the version in effect in 2008 unless otherwise stated. 5 1 irritants. (A.R. 10.) She could perform her past relevant work of 2 assembler and thus had not been under a disability since November 3 2, 2005, the date the application for SSI was filed. (A.R. 12.) 4 5 C. Plaintiff s Contentions Plaintiff s arguments concern step three, at which Plaintiff 6 contends that the ALJ failed to 1) consider adequately whether 7 Plaintiff s impairments met a listed impairment, namely, §3.03A 8 or 3.03B for asthma, and 2) state adequate reasoning concerning 9 his conclusion that Plaintiff s impairments did not meet a listed 10 impairment. 11 IV. Facts2 12 The parties essentially agree on the only critical facts, 13 which concern the medical symptoms, signs, events, and opinions 14 pertinent to the precise requirements of listings for asthma, § 15 3.03A or 3.03B. (Pltf. s brief pp. 3-4, Deft. s brief p. 2.) 16 Dr. Enok Lohne, M.D., opined that a pulmonary function 17 study, dated April 2003, showed moderate to severe obstructive 18 lung disease; the recommendation was to avoid exposure to 19 cigarette smoke. (A.R. 165.) 20 Plaintiff admitted having been out of medications in July 21 2004 (A.R. 163), but by August 2004 her peak flows were steady 22 and had improved to the 270 ranges, which was the low, green zone 23 for Plaintiff. Plaintiff was counseled on the importance of 24 compliance with her asthma action plan. (A.R. 162). 25 Plaintiff was admitted to the hospital for acute 26 27 28 2 Because Plaintiff has raised no issue involving the ALJ s findings concerning Plaintiff s credibility, and Plaintiff s contentions concern only the ALJ s reasoning at step three, the details of Plaintiff s testimony are not set forth. 6 1 exacerbation of asthma and hypoxia with cough, sinus drainage and 2 sneezing, and fever on March 11, 2005. Plaintiff reported that 3 she came to the emergency department infrequently and had 4 experienced one previous attack four to five years before. (A.R. 5 216-218). An x-ray reflected no acute cardiopulmonary disease. 6 (A.R. 210.) She remained in the hospital March 12, 2005, and was 7 observed overnight. She reported smoking with a history of having 8 smoked a half pack of cigarettes every day for the last twenty9 seven years. She was much improved after treatment and was 10 observed overnight; the impression was exacerbation of asthma by 11 an upper respiratory tract infection. (A.R. 204-05.) 12 Plaintiff went to the emergency department at the hospital 13 for treatment on July 7, 2005, for treatment for acute 14 exacerbation of asthma with dyspnea; she was discharged as stable 15 the same day with instructions. (A.R. 197-200.) On July 12, 2005, 16 at a follow-up visit, Plaintiff was advised that quitting smoking 17 was very important, and medication and a smoking cessation clinic 18 were prescribed. (A.R. 196.) 19 In a follow-up visit in February 2006, Plaintiff admitted 20 that she still smoked a pack of cigarettes and drank a six-pack 21 of beer daily; her shortness of breath had not worsened, and she 22 declined a new, follow-up pulmonary function test. (A.R. 193.) 23 However, in February 2006, more tests were run; pulmonary 24 function studies dated February 20, 2006, reflected mild 25 obstruction and indicated values more than twice listing levels. 26 (A.R. 170, 312-313). Izhar Hasan, M.D., examined Plaintiff and 27 found that Plaintiff s breath sounds were symmetric, there were 28 no rhonchi or rales, and the expiratory phase was within normal 7 1 limits. (A.R. 168.) His assessment was that Plaintiff had mild to 2 moderate asthma. (A.R. 170-72.) 3 In May 2006, Plaintiff denied shortness of breath and 4 reported that she was still smoking a pack per day. (A.R. 187.) 5 In July 2006, a chest study was negative. (A.R. 186.) 6 On July 25, 2006, Plaintiff sought treatment at the 7 emergency room for tightness of the chest that she had 8 experienced for five days; she was treated for a moderate 9 exacerbation of asthma. (A.R. 252-66.) She reported that she was 10 still smoking and had run out of medications for a day. (A.R. 11 255.) A chest study was negative. Expiratory flow readings are 12 included in the records. (A.R. 265.) She was discharged with 13 medication. (A.R. 184-86, 252-66.) 14 Jon D. Hirasuna, M.D., opined that tests completed in 15 October 2006 yielded an impression of mild to moderate 16 obstructive airways disease, no evidence of restrictive 17 dysfunction, a total lung capacity slightly above the normal 18 predicted range, and reduced diffusing capacity. (A.R. 315-16.) 19 Plaintiff received treatment overnight at the emergency room 20 on December 4 and 5, 2006, for shortness of breath and cough; she 21 admitted that she had been out of Albuterol, Advent, and 22 Singulair for about a month. She was advised to take her 23 medications and quit smoking. (A.R. 236-48, 241.) Expiratory flow 24 readings are included in the record. (A.R. 250.) 25 On the evening of June 14 and early morning of June 15, 26 2007, Plaintiff received treatment at the emergency department 27 for several hours for shortness of breath and was discharged home 28 as stable with advice to stop smoking. (A.R. 299-310.) 8 1 On July 6, 2007, Plaintiff received treatment for several 2 hours in the emergency room for acute exacerbation of asthma with 3 shortness of breath and wheezing. (A.R. 284-98.) 4 V. The ALJ s Analysis at Step Three 5 The ALJ stated: 6 3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Apendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 7 8 9 10 11 The claimant does not have any of the requisite clinical findings so as to meet, equal or approach the level of severity discussed in Sections 3.02, 3.03, 20 CFR Part 404, Subpart P, Appendix 1 (See, Exhibit 2F, p. 4; Exhibit 6F, p. 29). 12 (A.R. 10.) The ALJ also analyzed the medical evidence in 13 connection with determining Plaintiff s RFC: 14 15 16 17 18 19 20 21 22 23 24 25 26 In terms of the claimant s alleged respiratory impairment, while no treating physician gave a residual functional capacity, the Family Practitioner consulting physician imposed no limits, noting a completely normal physical examination (Exhibit 2F, pp. 1-3, 7). While an older (pre-alleged onset date of disability, and well before claimant s protective filing date) pulmonary function study showed moderate to severe chronic obstructive pulmonary disease (Exhibit 1F, p. 10, of April, 2003), the more recent pulmonary function studies indicate values more than twice (i.e., no where near meeting) listing levels (Exhibit 2F, p. 4 and Exhibit 6F, p. 29). Furthermore, all claimant s chest x-rays are negative (Exhibit 4F, p. 6; 4F, p. 3; 5F, p. 43). While it appears claimant had one hospitalization for breathing problems since her alleged onset date (in March 2005; Exhibit 4F, pp. 37-38), that note indicates the only similar incident occurred 4-5 years earlier. Furthermore, while claimant alleges she needs a doctor or emergency room assisted breathing treatment 2 to 3 times every year, that is not supported by the medical evidence of record (See, e.g., ED assists infrequent, Exhibit 4F, pp. 37-38). 27 (A.R. 11.) 28 The pertinent legal principles are established. It is 9 1 Plaintiff s burden to establish that her impairment met a 2 listing. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Mere 3 diagnosis of a listed impairment is not sufficient to sustain a 4 finding of disability; the claimant must also submit medical 5 findings equal in severity to all the criteria stated in the most 6 similar listing. Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990); 7 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990); 20 C.F.R. § 8 416.925(d). Generally, specific medical findings are needed to 9 support the diagnosis and the required level of severity. 20 10 C.F.R. §§ 404.1525(c)-(d), 416.925(c). The Commissioner is not 11 required to state why a claimant failed to satisfy every 12 different section of the listing of impairments; rather, it is 13 sufficient to evaluate the evidence upon which the ultimate 14 factual conclusions are based. Otherwise, an undue burden would 15 be put on the social security disability process. Gonzales v. 16 Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 1990). 17 The regulations governing the inquiry are specific and 18 extensive. In the listing of impairments, 20 C.F.R. Pt. 404, 19 Subpt. P, App. 1, § 3.00(A), it is provided that respiratory 20 disorders and any associated impairments must be established by 21 medical evidence that is provided in sufficient detail to permit 22 an independent reviewer to evaluate the severity of the 23 impairment. It specifies that the asthma listing specifically 24 includes a requirement for continuing signs and symptoms despite 25 a regimen of prescribed treatment. Id. Further, because the 26 symptoms of chronic pulmonary disease are common to many other 27 diseases, a chest x-ray or other appropriate imaging technique is 28 required to establish chronic pulmonary disease, and pulmonary 10 1 function testing, such as spirometric pulmonary function testing, 2 is required to assess the severity of the respiratory impairment 3 once a disease process is established by appropriate clinical and 4 laboratory findings. Id. 5 With respect to episodic respiratory diseases such as 6 asthma, the regulations provide that the frequency and intensity 7 of episodes that occur despite prescribed treatment are often the 8 major criteria for determining the level of impairment. 9 Documentation for these exacerbations should include the date and 10 time of treatment, treatment and response thereto, and clinical 11 and laboratory findings on presentation, such as the results of 12 spirometry and arterial blood gas studies (ABGS). § 3.00(C). 13 The regulations define attacks of asthma as referred to in 14 paragraph B of § 3.03 as prolonged symptomatic episodes lasting 15 one or more days and requiring intensive treatment, such as 16 intravenous bronchodilator or antibiotic administration or 17 prolonged inhalational bronchodilator therapy in a hospital, 18 emergency room or equivalent setting. Id. Hospital admissions 19 are defined as inpatient hospitalizations for longer than twenty20 four hours. The medical evidence must also include 21 information documenting adherence to a prescribed regimen of 22 treatment as well as a description of physical signs. For asthma, 23 the medical evidence should include spirometric results obtained 24 between attacks that document the presence of baseline airflow 25 obstruction. Id. Detailed requirements for documentation of 26 pulmonary function testing and chronic impairment of gas exchange 27 are set forth. §3.00(E), (F). 28 The pertinent listing states: 11 1 2 3 4 5 6 7 3.03 Asthma. With: A. Chronic asthmatic bronchitis. Evaluate under the criteria for chronic obstructive pulmonary disease in 3.02A; Or B. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each in-patient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks. 8 Further, § 3.02(A), referred to in § 3.03(A), provides: 9 10 11 12 3.02 Chronic pulmonary insufficiency. A. Chronic obstructive pulmonary disease, due to any cause, with the FEV<INF>1</INF> equal to or less than the values specified in table I corresponding to the person's height without shoes. (In cases of marked spinal deformity, see 3.00E.).... (table omitted). 13 Here, with respect to § 3.03(A), which requires an 14 evaluation of Plaintiff s symptoms under the criteria for chronic 15 pulmonary disease in 3.02A, Plaintiff does not suggest what 16 evidence meets the stated criteria. 17 The ALJ did not ignore or overlook the relevant evidence. 18 The ALJ referred to the record evidence, noting the results of 19 tests performed back in April 2003 (A.R. 11, 165), but he 20 concluded that the more recent studies indicated values more than 21 twice listing levels which thus were nowhere near meeting the 22 levels required in the listing. (A.R. 11, 170 [February 2006], 23 312 [October 2006].) He also pointed to the negative radiological 24 studies. In addressing the evidence and specifically pointing out 25 its deficiencies, the ALJ adequately set forth his reasoning. 26 Plaintiff does not point to any specific medical findings or 27 other medical evidence that satisfies the very specific criteria 28 12 1 of the listing. 2 With respect to § 3.03(B), the listing specifically requires 3 attacks at least once every two months or at least six times a 4 year. Plaintiff s visits amounted to two per year for 2005 5 through 2007 (March 12, 2005, July 7, 2005, July 25, 2006, 6 December 4, 2006, June 14, 2007, and July 6, 2007). Not all of 7 Plaintiff s hospital treatments qualified as hospitalizations 8 or hospital admissions, but even if they had, Plaintiff s 9 episodes still would not have met the requirements of the 10 listing. 11 Further, the ALJ provided numerous citations to record 12 evidence and pointed out that contrary to Plaintiff s testimony 13 that she was fully treatment and medication compliant, the 14 medical evidence of record showed otherwise, namely, that she 15 smoked against medical advice and multiple orders to quit, and 16 some of her breathing problem exacerbations occurred when she ran 17 out of medication. (A.R. 12.) As the foregoing summary of the 18 medical evidence reflects, substantial evidence supports this 19 finding by the ALJ. 20 Plaintiff asserts that the ALJ s statement that Plaintiff 21 had one hospitalization for breathing problems since her alleged 22 onset date (in March, 2005; Exhibit 4F, pp. 37-38 [A.R. 217-18] 23 (A.R. 11) demonstrates that the ALJ ignored significant portions 24 of the record reflecting Plaintiff s other treatment at the 25 hospital. However, in view of the ALJ s documented familiarity 26 with the record, and considering the pertinent regulatory 27 context, it is more likely that the ALJ is referring to hospital 28 admissions for longer than twenty-four hours, the pertinent 13 1 period in the governing regulations for counting attacks and 2 determining the intensity of the incident. Although Plaintiff 3 received treatment at the hospital on other occasions, her stays 4 were for periods shorter than twenty-four hours. (A.R. 199-200 5 [July 7, 2005]; 252 [July 25, 2006]; 236 [December 4 and 5, 6 2006]; 299 [June 14 and 15, 2007]; and 284 [July 6, 2007].) 7 The Court concludes that the ALJ stated adequate reasons for 8 his conclusion that Plaintiff s impairments did not meet the 9 listing. 10 Plaintiff challenges the ALJ s failure to find that 11 Plaintiff s impairments equaled a listing as well as the ALJ s 12 analysis of the issue. 13 Medical equivalence means that the medical findings 14 regarding an impairment are at least equal in severity and 15 duration to the listed findings. § 416.926(a). If a claimant does 16 not exhibit one or more medical findings specified in the 17 listing, or she exhibits all medical findings but one or more 18 findings is not as severe as specified in the listing, then the 19 impairment will be medically equivalent to the listing if the 20 claimant has other medical findings related to the impairment 21 that are at least of equal medical significance. § 416.926(a). 22 However, one who claims upon review that the ALJ erred in 23 not determining and finding that a claimant s combined 24 impairments equaled a listing must offer a theory of how the 25 impairments combined to equal a listed impairment and point to 26 evidence that shows that the claimant s combined impairments 27 equal a listed impairment. Lewis v. Apfel, 236 F.3d 503, 514 (9th 28 Cir. 2001). 14 1 Here, the ALJ expressly found that the impairments did not 2 meet or equal a listed impairment. The foregoing detailed summary 3 and analysis of the evidence and reasoning demonstrates that the 4 ALJ s conclusion was supported by substantial evidence. 5 Plaintiff offers no theory, plausible or otherwise, as to 6 how her pulmonary impairments combined to equal a listed 7 impairment, and she points to no evidence that shows that her 8 combined impairments equaled a listed impairment. 9 10 VI. Disposition Based on the foregoing, the Court concludes that the ALJ s 11 decision was supported by substantial evidence in the record as a 12 whole and was based on the application of correct legal 13 standards. 14 Accordingly, the Court AFFIRMS the administrative decision 15 of the Defendant Commissioner of Social Security and DENIES 16 Plaintiff s Social Security complaint. 17 The Clerk of the Court IS DIRECTED to enter judgment for 18 Defendant Michael J. Astrue, Commissioner of Social Security, 19 and against Plaintiff Beverly Jean Garcia. 20 21 IT IS SO ORDERED. 22 Dated: icido3 23 April 1, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 15
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