United States District Court, D. Alaska
ORDER
H.
Russel Holland United States District Judge.
This is
an action for judicial review of the denial of disability
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401-434. Plaintiff Susan Christine Whittaker has
timely filed her opening brief, [1] to which defendant, Nancy A.
Berryhill, the acting Commissioner of the Social Security
Administration, has responded.[2] Oral argument was not requested
and is not deemed necessary.
Procedural
Background
On
August 11, 2010, plaintiff filed an application for
disability benefits under Title II of the Social Security
Act.[3]
Plaintiff alleged that she became disabled on August 20,
1999. Plaintiff alleges that she is disabled due to back and
knee problems, cervical fusion, temporomandibular joint
dysfunction (TMJ), and migraines. Plaintiff's application
was denied initially on February 22, 2011. Plaintiff
requested a hearing, and an administrative hearing was held
on August 25, 2011. On September 9, 2011, an administrative
law judge (ALJ) denied plaintiff's application. Plaintiff
sought review of the ALJ's decision, and on April 4,
2013, the Appeals Council remanded the matter to the ALJ.
After remand, an administrative hearing was held on August 8,
2013. On August 27, 2013, the ALJ again denied
plaintiff's application. On February 12, 2015, the
Appeals Council denied plaintiff's request for review of
the ALJ's August 27, 2013 decision. Plaintiff sought
judicial review. On January 11, 2016, pursuant to the
parties' stipulation, the matter was remanded for further
proceedings. On remand, administrative hearings were held on
September 28, 2016 and February 27, 2017. On May 3, 2017, the
ALJ again denied plaintiff's application. The Appeals
Council did not assume jurisdiction within thirty days of the
ALJ's May 3, 2017 decision, thereby making this the final
decision of defendant.
On
August 14, 2017, plaintiff commenced this action in which she
asks the court to find that she is entitled to disability
benefits.
General
Background
Plaintiff
was born on February 25, 1958. Plaintiff was 41 years old on
her alleged onset date. Plaintiff has a high school education
plus two years of college. Plaintiff is married and has two
daughters. Plaintiff's past work includes work as a
computer hardware technician, a secretary, a desktop
publisher, and an administrative clerk.
The
ALJ's May 3, 2017 Decision
The ALJ
first determined that plaintiff “last met the insured
status requirements of the Social Security Act on December
31, 2002.”[4] Thus, in order to be eligible for Title II
benefits, plaintiff must have been disabled on or before
December 31, 2002. In other words, the relevant time period
for plaintiff's application for benefits is August 20,
1999 through December 31, 2002.
The ALJ
then applied the five-step sequential analysis used to
determine whether an individual is disabled.[5]
At step
one, the ALJ found that plaintiff “did not engage in
substantial gainful activity during the period from her
alleged onset date of August 20, 1999 through her date last
insured of December 31, 2002....”[6]
At step
two, the ALJ found that “[t]hrough the date last
insured, the claimant had the following severe impairments:
cervical spine degenerative disc disease, status
post-surgery; lumbar spine degenerative disc disease with
herniated nucleus pulposus at ¶ 5-S1, status-post
surgery; carpal tunnel syndrome, status-post release on the
right; obesity....”[7] The ALJ found plaintiff's TMJ
non-severe.[8]
At step
three, the ALJ found that “[t]hrough the date last
insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1....”[9]The ALJ's step three
finding was based on the testimony of Dr. Sklaroff,
[10]
who testified as a medical expert at the September 28, 2016
hearing. Dr. Sklaroff's opinion as to whether
plaintiff's impairments met or equaled any of the
listings is discussed below in detail.
“Between
steps three and four, the ALJ must, as an intermediate step,
assess the claimant's RFC.” Bray v. Comm'r
of Social Security Admin., 554 F.3d 1219, 1222-23 (9th
Cir. 2009). The ALJ found that “through the date last
insured, the claimant had the residual functional capacity to
perform the full range of medium work as defined in 20 CFR
404.1567(c).”[11]
The ALJ
found plaintiff's pain and symptom statements to be
inconsistent with the medical evidence and plaintiff's
statements during treatment.[12] The ALJ also found that
plaintiff had shown medical improvement after her lumbar and
cervical spine surgery.[13]
The ALJ
gave great weight to Dr. Sklaroff's
opinion.[14] The ALJ gave little weight to Dr.
Caldwell's opinion.[15] The ALJ gave no weight to the
opinions of Dr. Voke.[16] The ALJ also gave no
weight[17] to the opinion of Dr.
Christensen.[18] And, the ALJ gave no
weight[19] to ANP Buchanan's
opinion.[20]
At step
four, the ALJ found that “[t]hrough the date last
insured, the claimant was capable of performing past relevant
work as a general clerk and desktop publishing assistant.
This work did not require the performance of work-related
activities precluded by the claimant's residual
functional capacity ..... ”[21] This finding was based on
the testimony of the vocational expert.[22]
The ALJ
thus concluded that plaintiff “was not under a
disability, as defined in the Social Security Act, at any
time from August 20, 1999, the alleged onset date, through
December 31, 2002, the date last
insured....”[23]
Standard
of Review
Pursuant
to 42 U.S.C. § 405(g), the court has the “power to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of
the Commissioner....” The court “properly affirms
the Commissioner's decision denying benefits if it is
supported by substantial evidence and based on the
application of correct legal standards.” Sandgathe
v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
“Substantial evidence is ‘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. (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). “‘To determine whether substantial
evidence supports the ALJ's decision, [the court]
review[s] the administrative record as a whole, weighing both
the evidence that supports and that which detracts from the
ALJ's conclusion.'” Id. (quoting
Andrews, 53 F.3d at 1039). If the evidence is
susceptible to more than one reasonable interpretation, the
court must uphold the Commissioner's decision.
Id. But, the Commissioner's decision cannot be
affirmed “‘simply by isolating a specific quantum
of supporting evidence.'” Holohan v.
Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999)).
Discussion
Plaintiff
first argues that the ALJ erred at step three in finding that
her impairments did not meet Listing 1.04A. “To
meet a listed impairment, a claimant must establish
that he or she meets each characteristic of a listed
impairment relevant to his or her claim.”
Tackett, 180 F.3d at 1099. To meet Listing 1.04A,
[24]
plaintiff must show that she has a
[d]isorder[] of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including
the cauda equina) of the spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex
loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine)[.]
There
is no dispute that plaintiff had a herniated nucleus pulposus
that resulted in compromise of the nerve root.[25] There is also
no dispute that there is evidence of nerve root compression
characterized by neuro-anatomic distribution of pain,
[26]
limitation of motion of the spine, [27] sensory or reflex loss,
[28]
and positive straight leg raising.[29] The dispute here is
whether there was any motor loss associated with
plaintiff's lumbar spine disorder. Motor loss is defined
in Listing 1.04A as atrophy with associated muscle weakness
or muscle weakness. A physical finding such as this
“must be determined on the basis of objective
observation during the examination and not simply a report of
the individual's allegation; e.g., ‘He
says his leg is weak, numb.'” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, 1.00(D).
The ALJ
relied on Dr. Sklaroff's testimony that plaintiff's
lumbar spine disorder did not meet Listing
1.04A[30] Dr. Sklaroff testified that what was
missing was “the motor loss....”[31] He testified
that he would not take plaintiff's complaints of leg pain
at face value because he would want “something to
corroborate it and explain why.”[32] He testified
that “it's unclear from that faction of the record
[dealing with plaintiff's lumbar spine disorder] that
there was a radiculopathy consistent with 1.04A in terms of
there being a concomitant motor
component.”[33] Dr. Sklaroff agreed that plaintiff had
nerve root compression but testified that “it's
just not enough.”[34] He insisted that “[t]here's
no motor component. It's all
sensory.”[35]
Plaintiff
argues however that there is evidence of motor loss
associated with her lumbar spine disorder. She points to her
complaints of pain and numbness in her legs[36] and Dr.
Voke's December 3, 2001 diagnosis of “[c]hronic
radiculopathy, both lower extremities, secondary to
degenerative disk disease and nerve root
irritation.[37] But, plaintiff's subjective
complaints are not sufficient. See 20 C.F.R. §
416.929(a) (“statements about your pain or other
symptoms will not alone establish that you are
disabled”). It is also not sufficient that Dr. Voke
diagnosed plaintiff with radiculopathy. See Young v.
Sullivan, 911 F.2d 180, 183 (9th Cir. 1990) (mere
diagnosis of a listed impairment “is not sufficient to
sustain a finding of disability”). In order for
plaintiff to meet Listing 1.04A, there must be some objective
evidence of motor loss associated with her lumbar spine
disorder.
Here,
there is substantial objective evidence to the contrary. On
May 17, 2001, Dr. Rhyneer found that plaintiff's
“muscle strength [was] normal bilaterally in both lower
extremities.”[38] On October 21, 2001, Dr. Lee noted that
plaintiff's lower extremity “motor strength ...
appears to be appropriate.”[39] On April 18, 2002, Dr.
Lee's “focused examination of the lower extremity
reveal[ed] good motor tone and strength.”[40] And, on June
10, 2002, Dr. Lee found that “[t]here is no muscle tone
atrophy or wasting appreciated.”[41] In light of
this evidence, the ALJ did not err in finding that
plaintiff's lumbar spine disorder did not meet Listing
1.04A.
Plaintiff
next argues that the ALJ erred in finding that her
impairments did not equal Listing 1.04A. “To
equal a listed impairment, a claimant must establish
symptoms, signs and laboratory findings ‘at least equal
in severity and duration' to the characteristics of a
relevant listed impairment[.]'” Tackett,
180 F.3d at 1099 (quoting 20 C.F.R. § 404.1526).
The ALJ
again relied on Dr. Sklaroff's testimony to find that
plaintiff had not established that her impairments equaled
Listing 1.04A. Dr. Sklaroff testified that the “issue
that arises is whether or not she had radiculopathy that was
definable in conjunction with this entire
constellation” of impairments.[42] He testified that
although in June 2002, plaintiff was having neck pain and
still having back pain, “there was no muscle tone
atrophy or wasting appreciated. So that it seems that the
presentation, and this is as of 2002, was primarily
pain-related.”[43] He testified that “perhaps if you
had other components that would suggest maybe some earlier
motor problems. But you don't have that
either.”[44] He testified that even if radiculopathy
was the cause of plaintiff's pain, there was no
“association of radiculopathy with a motor
problem.”[45]
Plaintiff
argues however that she did have motor loss associated with
her cervical spine impairment and/or her carpal tunnel
syndrome. Plaintiff points to evidence that she had weakness
and numbness in her hands, [46] numbness and tingling in her
left arm, [47] and intermittent pain in her right arm
after the carpal tunnel surgery.[48]
But as
discussed above, plaintiff's subjective complaints are
not sufficient to establish that she equals Listing 1.04A.
There must be some objective evidence that plaintiff had
motor loss associated with her cervical spine disorder and/or
her carpal tunnel syndrome, which there is in the form of
plaintiff's April 10, 2002 abnormal nerve conduction
study.[49]This study showed that plaintiff had some
motor loss in her wrists, with the loss greater in her right
than her left.[50] The problem here though is that there is
no evidence that this motor loss lasted or was expected to
last for a continuous twelve-month period. Fifteen days after
her April 10, 2002 nerve conduction study, plaintiff had
carpal tunnel release on the right, [51]surgery which plaintiff
testified was generally successful.[52] Although plaintiff
testified that she never regained all of her right hand
strength after her carpal tunnel release, [53] there is no
objective evidence corroborating this. In fact, on June 10,
2002, Dr. Lee found that plaintiff's “[g]rip [was]
within normal limits on the left and
right.”[54] Moreover, while ANP Jasper treated
plaintiff for hand and arm pain in 2000-2001, [55] there is no
objective evidence in Jasper's treating notes as to any
motor loss associated with this pain. The ALJ did not err in
finding that plaintiff's impairments did not equal
Listing 1.04A.
Plaintiff
next argues that the ALJ erred in assessing her RFC because
the ALJ failed to take into account the failed cervical
fusion at ¶ 6-C7. Plaintiff contends that the fusion at
¶ 6-C7 was only partially successful and that she had
restricted range of motion of her cervical spine as a result.
Plaintiff argues that if the ALJ had considered the failed
C6-C7 fusion, she would have included additional limitations
in plaintiff's RFC as there is evidence that the
restricted range of motion limited plaintiff's ability to
lift and carry and use her hands.[56]
The
evidence does not support plaintiff's contention that her
cervical fusion at ¶ 6-C7 was only partially successful.
This contention is based on the January 8, 2003 CT scan of
plaintiff's spine that showed “partial bony fusion
in the right half but no evidence for bony fusion on the
left....”[57] Dr. Voke felt that there might be some
nonunion and sent plaintiff to a consultation with Dr. Eule,
[58]
who on March 19, 2003, indicated that he believed that the CT
scan and MRI showed solid fusion at ¶
6-C7.[59] Dr. Eule's ...