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Geer v. Colvin

United States District Court, Ninth Circuit

October 7, 2013

LEA N. GEER, Plaintiff,

Alan Stuart Graf, P.C., Summertown, TN, Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon, Adrian L. Brown, Assistant United States Attorney, Portland, OR, Erin F. Highland, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Seattle, WA, Attorneys for Defendant.


GARR M. KING, District Judge.

Plaintiff Lea N. Geer brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying plaintiff's application for disability insurance benefits ("DIB"). I affirm the decision of the Commissioner.


Geer filed an application for DIB on July 11, 2006. The application was denied initially and upon reconsideration. After a timely request for a hearing, Geer, represented by counsel, appeared and testified before an Administrative Law Judge ("ALJ") on February 18, 2009.

On March 4, 2009, the ALJ issued a decision finding that Geer was not disabled within the meaning of the Act and therefore not entitled to benefits. The Appeals Council vacated and remanded the decision to reconsider evidence in light of her date last insured of December 31, 2008, to adequately address lay witness testimony of Dennis Geer and Cynthia Robledo, and to assess how Geer's mental impairments affect her Residual Functional Capacity ("RFC").

Geer, again represented by counsel, appeared and testified before an ALJ on May 26, 2010. On June 28, 2010, the ALJ issued a decision finding Geer not disabled. This decision became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ on August 15, 2012.


The Social Security Act (the "Act") provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security income benefits may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a).

The claimant must demonstrate an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to cause death or to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either DIB or SSI due to disability. The evaluation is carried out by the ALJ. The claimant has the burden of proof on the first four steps. Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ determines whether the claimant is engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b) and 416.920(b). If the claimant is engaged in such activity, disability benefits are denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a medically severe impairment or combination of impairments. A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]" 20 C.F.R. §§ 404.1520(c) and 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied.

If the impairment is severe, the ALJ proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d) and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work she performed in the past, a finding of "not disabled" is made and disability benefits are denied. 20 C.F.R. §§ 404.1520(f) and 416.920(f).

If the claimant is unable to perform work performed in the past, the ALJ proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his age, education, and work experience. The burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Parra , 481 F.3d at 746. The claimant is entitled to disability benefits only if he is not able to perform other work. 20 C.F.R. §§ 404.1520(g) and 416.920(g).


The court must affirm a denial of benefits if the denial is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue , 674 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" and is more than a "mere scintilla" of the evidence but less than a preponderance. Id . (internal quotation omitted). The court must uphold the ALJ's findings if they "are supported by inferences reasonably drawn from the record[, ]" even if the evidence is susceptible to multiple rational interpretations. Id.


The ALJ concluded Geer suffered from mild degenerative disc disease of the cervical and thoracic spine, fibromyalgia, somatoform disorder, depressive disorder NOS, and generalized anxiety disorder. The ALJ found these impairments, either singly or in combination, did not meet or medically equal the requirements of any of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. He assessed her RFC at light work, with the ability to balance, kneel and climb ramps and stairs frequently. However, he found her limited to no more than occasional performance on all other postural activities, and he believed she was capable of performing simple, routine, repetitive tasks. Relying on the testimony of a Vocational Expert ("VE"), the ALJ concluded Geer could perform her past relevant work as a cannery worker and labeler. Alternatively, she could perform work as a final assembler, addresser, and document sorter.


Geer was 48 years old on her date last insured. She has a GED and has worked as a cannery worker, a labeler, and a home health aide. She was terminated from her most recent job as a home health aide in May 2006 because she was having trouble lifting her client; she initially testified she had trouble lifting after she fell out of a boat, but, when she was reminded the incident had occurred after she stopped working, she testified her fibromyalgia was bothering her. She reported she could not sit more than 20 minutes, walk more than 30 minutes, or lift more than five pounds at a time, and that she suffered from short-term memory loss and cried easily. She experienced pain over her whole body and she was tired. She has three adult children, one of whom has multiple sclerosis and is in an electric wheelchair and one who has cerebral palsy. Both live with her but are independent.

Nazmul Hoque, M.D., treated Geer's diffuse muculoskeletal pain, anxiety and depression from 2004 through 2008. He prescribed Vicodin consistently, but also tried Prozac, Cymbalta, Ultram, Wellbutrin, and Soma. Her pain was fairly stable with a combination of medications until, in April of 2006, she reported stiffness and worsening of her pain; Dr. Hoque added Fosamax, Xanax, and Nexium to her regimen.

On July 5, 2006, she arrived at the emergency department at Samaritan Pacific Communities Hospital having fallen between a boat and a cement dock two weeks before; her husband pulled her out of the water. She complained of pain in her left elbow and shoulder. There was no evidence of fracture or dislocation, and Joseph Goldman, DO, assessed "[s]omatic dysfunction of the infraspinatus, supraspinatus, trapezius, levator scapula, deltoid, biceps, and serratus anterior, all on the left side." Tr. 353. From the date of this accident, when summarizing her medical history, she repeatedly described it as follows: she "tore all the muscles off" her arm bones after a fall from a boat. Tr. 399 (12/2/2006); Tr. 453 (1/9/2007); Tr. 459 (1/15/2007); Tr. 119 (2/18/2009); Tr. 58 (5/26/2010).

She returned to Dr. Hoque on July 21, explaining she had been to the emergency room earlier that month. She said the pain was getting better until she subsequently twisted and fell again, landing on her left shoulder. She said the Vicodin and Vicoprofen he had prescribed were not working. Dr. Hoque opined the etiology of Geer's pain was unclear, but he sent her for an x-ray. He noted "she has fibromyalgia and this could be psychogenic." Tr. 414. In August, she reported continued neck pain and cervical radiculopathy. She tried cleaning her house, but her pain went to 10 out of 10; she was taking 10 Vicoprofen a day. Dr. Hoque prescribed MS Contin for three days, as well as Ativan, Elavil, Cymbalta, and Soma. Geer's fibromyalgia was improving in October with amitryiptyline. At that time, Dr. Hoque recommended a fibromyalgia clinic, which subsequently confirmed the diagnosis. Dr. Hoque prescribed Morphine for her severe, chronic, intractable pain in November, but Geer could not tolerate the drug. On January 8, 2007, Dr. Hoque referred her to a pain specialist.

John H. Ellison, M.D., undertook a comprehensive rheumatology examination of Geer on January 9, 2007, and reported Geer's complaints of migraine headaches, a "reverse curve" of her cervical spine, weak legs, stiffness and soreness. Tr. 453. He noted normal results for her dorsolumbar spine, hips, knees, ankles, elbows, wrists and fingers; negative straight leg raising; and normal gait, coordination, motor strength, sensory exam, and reflexes. He noted some limitation in flexion, extension, and rotation in Geer's cervical spine and in her shoulder elevation, extension, abduction and adduction. An updated MRI showed mild degenerative changes at C5-C6 and in the thoracic ...

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