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Kahler v. Colvin

United States District Court, Ninth Circuit

December 17, 2013

TAMMY JANE KAHLER, Plaintiff,
v.
CAROLYN W. COLVIN. Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

KAREN L. STROMBOM, Magistrate Judge.

Plaintiff has brought this matter for judicial review of defendant's denial of her applications for disability insurance and supplemental security income ("SSI") benefits. This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule MJR 4(a)(4) and as authorized by Mathews, Secretary of H.E.W. v. Weber , 423 U.S. 261 (1976). After reviewing the parties' briefs and the remaining record, the undersigned submits the following Report and Recommendation for the Court's review, recommending that for the reasons set forth below, defendant's decision to deny benefits should be reversed and this matter should be remanded for further administrative proceedings.

FACTUAL AND PROCEDURAL HISTORY

On May 25, 2006, plaintiff filed an application for disability insurance benefits and another one for SSI benefits, alleging in both applications that she became disabled beginning November 30, 2005, due to epilepsy, diabetes, anxiety, and depression. See ECF #13, Administrative Record ("AR") 11, 135. Both applications were denied upon initial administrative review on August 17, 2006, and on reconsideration on January 25, 2007. See AR 11. A hearing was held before an administrative law judge ("ALJ") on March 12, 2009, at which plaintiff, represented by counsel, appeared and testified, as did a vocational expert. See AR 32-55.

In a decision dated April 23, 2009, the ALJ determined plaintiff to be not disabled. See AR 11-21. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on July 30, 2009, making the ALJ's decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 1; see also 20 C.F.R. § 404.981, § 416.1481. Plaintiff appealed that decision to this Court, which on October 29, 2010, reversed and remanded the matter for further administrative proceedings due to the ALJ's errors in failing to properly consider the evidence in the record concerning her migraine headaches and bladder dysfunction. See AR 603-14.

Pursuant to the Court's order, on November 19, 2010, the Appeals Council vacated the ALJ's decision (see AR 585), and on February 23, 2011, a second administrative hearing was held before a different ALJ, at which plaintiff, represented by counsel, appeared and testified, as did a different vocational expert. See ECF #14, AR 775-809. In a decision dated March 25, 2011, that ALJ also determined plaintiff to be not disabled. See ECF #15, AR 813-29. It does not appear from the record that the Appeals Council assumed jurisdiction of the case. See 20 C.F.R. § 404.984, § 416.1484. The ALJ's decision therefore became the Commissioner's final decision after sixty days. Id . On November 7, 2011, plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision. See ECF #3. The administrative record was filed with the Court on March 18, 2013. See ECF #13-#15.

The parties have completed their briefing, and thus this matter is now ripe for the Court's review. Plaintiff argues the ALJ's decision should be reversed and remanded for an award of benefits, or in the alternative for further administrative proceedings, because the ALJ erred in failing to properly consider the impact of both plaintiff's headaches and her neurogenic bladder requiring self-catheterization twice during the work day on her residual functional capacity. For the reasons set forth below, the undersigned agrees the ALJ erred in failing to properly consider the impact of plaintiff's headaches on her RFC, and thus on that basis in determining plaintiff to be not disabled. Also for the reasons set forth below, however, the undersigned recommends that while defendant's decision to deny benefits should be reversed, this matter once more should be remanded for further administrative proceedings.

DISCUSSION

The determination of the Commissioner that a claimant is not disabled must be upheld by the Court, if the "proper legal standards" have been applied by the Commissioner, and the "substantial evidence in the record as a whole supports" that determination. Hoffman v. Heckler , 785 F.2d 1423, 1425 (9th Cir. 1986); see also Batson v. Commissioner of Social Security Admin. , 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan , 772 F.Supp. 522, 525 (E.D. Wash. 1991) ("A decision supported by substantial evidence will, nevertheless, be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.") (citing Brawner v. Secretary of Health and Human Services , 839 F.2d 432, 433 (9th Cir. 1987)).

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) (citation omitted); see also Batson , 359 F.3d at 1193 ("[T]he Commissioner's findings are upheld if supported by inferences reasonably drawn from the record."). "The substantial evidence test requires that the reviewing court determine" whether the Commissioner's decision is "supported by more than a scintilla of evidence, although less than a preponderance of the evidence is required." Sorenson v. Weinberger , 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). "If the evidence admits of more than one rational interpretation, " the Commissioner's decision must be upheld. Allen v. Heckler , 749 F.2d 577, 579 (9th Cir. 1984) ("Where there is conflicting evidence sufficient to support either outcome, we must affirm the decision actually made.") (quoting Rhinehart v. Finch , 438 F.2d 920, 921 (9th Cir. 1971)).[1]

Defendant employs a five-step "sequential evaluation process" to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. If the claimant is found disabled or not disabled at any particular step thereof, the disability determination is made at that step, and the sequential evaluation process ends. See id. If a disability determination "cannot be made on the basis of medical factors alone at step three of that process, " the ALJ must identify the claimant's "functional limitations and restrictions" and assess his or her "remaining capacities for work-related activities." Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 *2. A claimant's residual functional capacity ("RFC") assessment is used at step four to determine whether he or she can do his or her past relevant work, and at step five to determine whether he or she can do other work. See id.

Residual functional capacity thus is what the claimant "can still do despite his or her limitations." Id . It is the maximum amount of work the claimant is able to perform based on all of the relevant evidence in the record. See id. However, an inability to work must result from the claimant's "physical or mental impairment(s)." Id . Thus, the ALJ must consider only those limitations and restrictions "attributable to medically determinable impairments." Id . In assessing a claimant's RFC, the ALJ also is required to discuss why the claimant's "symptomrelated functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical or other evidence." Id. at *7.

With respect to the impact plaintiff's headaches has on plaintiff's RFC, the ALJ found in relevant part:

The claimant began experiencing headaches in 2007. The onset of symptoms was not related to any specific injury or illness. Pain typically involves the forehead and biparietal area. The claimant has been unable to identify specific triggers. Nausea, vomiting, dizziness, and visual obscurations accompany headaches. She treats symptoms with analgesics. Nurse [Sandy] Niehm prescribed Midrin, which proved too strong and caused sleepiness. The claimant has tried preventative therapy with Amitriptyline and abortive therapy with Imitrex. The claimant complained of headache pain to Marlene Dietrich, M.D., a neurologist. She reported waking up often with a headache. Dr. Dietrich prescribed Ibuprofen, which reduced pain. Pain improved in April 2007, when [the] claimant experienced about one headache per week. In October 2007, Dr. [Steven A.] Day assessed typical migraine without aura. The claimant reported very good headache response with Immitrex 100 mg, and stated Imitrex "wiped out my headaches". She was very pleased with her response to this medication and suffered no side effects. Dr. Day also recommended lifestyle changes, including aerobic exercise such as vigorous walking 20 to 30 minutes three times a week; and consistent sleep, regular meals, and avoidance of potential food triggers. In December 2008, Dr. Dietrich diagnosed recurrent migraines and prescribed Top[a]max and Fioricet. Use of Fioricet as needed provided "considerable relief". Headaches worsened after [the] claimant stopped taking Topamax. In February 2009, she told Dr. Day she was "very happy" with her current headache control. She had experienced four headaches in the previous month that resolved with Imitrex. In March 2010, Nurse Niehm indicated current headache symptoms were related to tension instead of migraines. The claimant reported feeling anxious. Dr. [Elena] Robinson prescribed magnesium and ginger root in July 2010. ...

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