Vevelyn Johnson v. Michael J. Astrue, No. 2:2008cv05328 - Document 23 (C.D. Cal. 2009)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (dhl)
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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 VEVELYN JOHNSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _______________________________) NO. CV 08-05328 SS MEMORANDUM DECISION AND ORDER 17 18 19 INTRODUCTION 20 21 Vevelyn 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 application for Supplemental Security Income ( SSI ). 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 26 undersigned United States Magistrate Judge. 27 Court on the parties Joint Stipulation ( Jt. Stip. ) filed on March 6, 28 2009. The parties This matter is before the For the reasons stated below, the decision of the Commissioner is AFFIRMED. 1 PROCEDURAL HISTORY 2 3 Plaintiff filed applications for SSI and Disability Insurances 4 Benefits ( DIB ) on August 8, 2006. 5 88).1 6 disability.2 (Id.). The Commissioner denied DIB benefits on August 13, 7 2006, (AR 48), and SSI benefits on September 21, 2006. 8 Plaintiff submitted a request for reconsideration on November 1, 2006.3 9 (AR 58). (Administrative Record ( AR ) 83, Plaintiff listed December 31, 1999 as the onset date of her (AR 52). On January 11, 2007, the Commissioner denied reconsideration. 10 (AR 60-64). Plaintiff requested a hearing before an administrative law 11 judge ( ALJ ) on February 12, 2007. (AR 66). 12 13 On November 21, 2007, Plaintiff s hearing proceeded before ALJ 14 Jeffrey A. Hatfield. (AR 16). The ALJ rendered an unfavorable decision 15 on November 29, 2007. 16 requested Appeals Council review. 17 Plaintiff s request for review on July 18, 2008. (AR 1). On August 19, 18 2008, Plaintiff filed the instant complaint. (AR 6). On December 20, 2007, Plaintiff (AR 4). The Appeals Council denied 19 20 \\ 21 \\ 22 23 1 24 25 While the applications are dated August, 8, 2006, the administrative law judge s decision states that the applications were filed on July 31, 2006. (AR 9). 2 26 Plaintiff subsequently amended the onset date of her disability to July 31, 2006. (AR 19-20). 27 3 28 Plaintiff did not request reconsideration of her DIB denial and subsequently moved to dismiss her DIB claim. (AR 19). 2 1 FACTUAL HISTORY 2 3 A. Generally 4 5 Plaintiff was born on March 24, 1959. (AR 83, 88). Plaintiff 6 received a GED and attended a couple of years of college. 7 Plaintiff s past occupations included work as a bus driver, a cashier, 8 and as a home attendant. (AR 36). Plaintiff claims disability stemming 9 from degenerate spinal column disease, lumb[a]r spine L5-S1 with 10 allegations of radiculopathy to the right leg[,} . 11 complications . . . with the right hip[,] and obesity. (AR 22). . . some (AR 20). 12 13 B. Relevant Medical History 14 15 1. Treating Physicians 16 17 Plaintiff s medical records show that she was seen repeatedly by 18 Universal Care during 2005 and 2006. (AR 144-47, 150-58, 160-67, 173, 19 175-77). 20 nursing staff4 who noted that Plaintiff complained of back pain and 21 sought to refill her medication, described as HTN. 22 October 18, 2005, Plaintiff was seen by the same member of the nursing 23 staff who again noted that Plaintiff complained of [b]ack pain, and 24 sought to refill her medication, described as HTN. 25 December 13, 2005, Plaintiff was seen by Dr. Phillip Le, M.D. ( Dr. Le ) 26 and a member of the nursing staff, Kumudu Mohan, M.A. ( Nurse Mohan ), On September 20, 2005, Plaintiff was seen by a member of the 27 28 4 The name of this person is illegible. 3 (AR 166). (AR 166). (AR 165). On On 1 for [b]ack [p]ain. 2 seen by a member of the nursing staff, Victor Nava, M.A., for a lipid 3 panel. 4 (AR 161). 5 noted that Plaintiff sought refills for her medication. 6 January 31, 2006, Plaintiff was seen by Dr. Hung Nguyen, M.D., who noted 7 that Plaintiff complained of [b]ack pain and sought to refill her 8 medication. 9 Northern, FNP/PA-C, who noted that Plaintiff complained of back pain (AR 162). (AR 163). On December 19, 2005, Plaintiff was On December 28, 2005, Plaintiff was seen by Dr. Le. On January 3, 2006, Plaintiff was again seen by Dr. Le, who (AR 158). (AR 160). On On May 4, 2006, Plaintiff was seen by Matt 10 and had some lateral swelling on her right ankle. 11 14, 2006, Plaintiff was seen by Dr. Steve T. Hwang, M.D. 12 July 11, 2006, Plaintiff was seen by Dr. Jeffrey Kleis, D.P.M. ( Dr. 13 Kleis ). (AR 173). On July 14, 2006, Plaintiff was again seen by Nurse 14 Mohan, who noted that Plaintiff was being seen for a [c]onsult on 15 [b]ack pain. 16 an orthotic by Dr. Kleis. (AR 150). (AR 154). On June (AR 175). On On August 7, 2006, Plaintiff was fitted for (AR 146). 17 18 Plaintiff s medical records further show that she did not attend 19 scheduled medical appointments on August 16, 2005, November 23, 2005, 20 February 6, 2006, May 15, 2006, May 17, 2006, July 31, 2006, August 15, 21 2006, and August 21, 2006. 22 The records further show that Plaintiff missed three additional medical 23 appointments for which the date is not legible. (AR 144-45, 147, 153, 157, 164, 167, 177). (AR 155-56, 176). 24 25 Finally, Plaintiff was seen by two doctors outside of Universal 26 Care. 27 Mehringer, M.D., who noted that Plaintiff had [d]egenerative changes 28 in her lumbosacral spine, but that no significant changes had occurred On December 19, 2005, Plaintiff was seen by Dr. C. Mark 4 1 since her last examination on February 7, 2005. 2 2006, Plaintiff was seen by Dr. Martin W. Weiler, M.D., who noted that 3 Plaintiff had a Plantar spur in her right ankle. (AR 172). On May 4, (AR 171). 4 5 2. State Agency Physician 6 7 Medical consultant E. Cooper ( Cooper ) reviewed Plaintiff s 8 medical records for the Disability Determination Service ( DDS ) and 9 issued a Physical Residual Functional Capacity Assessment on September 10 19, 11 hypertension and chronic back pain. (AR 185). Dr. Cooper indicated 12 that 13 frequently lift and/or carry 25 pounds, stand or walk about 6 hours in 14 an 8-hour workday, and sit about 6 hours in an 8-hour workday. 15 186). 16 limitations. 17 occasionally climb, balance, stoop, kneel, crouch, and crawl. (AR 187). 18 Finally, Dr. Cooper determined that Plaintiff had no manipulative 19 limitations, 20 environmental limitations. 2006. (AR Plaintiff 185-89). could Dr. Cooper occasionally lift diagnosed and/or Plaintiff carry 50 with pounds, (AR Dr. Cooper found that Plaintiff could push and/or pull without (Id.). visual Dr. Cooper further found that Plaintiff could limitations, communicative limitations, or (AR 187-88). 21 22 3. Plaintiff s Testimony 23 24 Plaintiff testified at her hearing in response to questions from 25 both the ALJ and her counsel. (AR 21-38). Plaintiff testified that she 26 was 5 8 tall and 315 pounds. 27 has a valid driver s license, but that she does not drive anymore 28 because of her back injury. (AR 21). (AR 23). 5 Plaintiff testified that she Plaintiff described her back 1 injury as degenerative, but was not . . . sure how [it] operates. 2 (Id.). 3 driver, but that she left the job after having issues with standing and 4 bending. 5 could possibly do something else, (AR 24), and attended college courses 6 at Long Beach City College for two years. (AR 25, 29). Plaintiff was 7 in 8 rehabilitation. (AR 22). Plaintiff testified that she attended school 9 full time between 2003 and 2005. a Plaintiff explained that she last worked in 2000 as a bus (AR 24). program Plaintiff decided to go to school to see if [she] that would give her a certification in drug (AR 37). 10 11 Plaintiff testified that she bathes, gets dressed, and prepares 12 meals without assistance. 13 sometimes uses an umbrella to assist her in walking, but that her 14 doctors had not prescribed any assistive device. (AR 25-26). Plaintiff 15 testified that she leaves the house to go grocery shopping, but [n]ot 16 very often. 17 the aisles [f]or a short time, but that she always has the help of one 18 of her sons. (AR 25). Plaintiff explained that she Plaintiff explained that she is able to walk up and down (AR 26) 19 20 Plaintiff described her pain as located in the lower part of the 21 spine around to the leg area, all the way down to the ankle on the 22 right side. 23 in her left leg in the toe area. 24 the mobility in her left leg was worse than in her right leg. 25 Plaintiff testified that she first noticed the pain in her left leg 26 while she was taking college classes in 2005. (AR 27-28). Plaintiff further testified that she had pain (AR 28). 27 28 6 Plaintiff explained that (AR 29). (Id.). Plaintiff 1 further testified that she had pain in her right hip area and that 2 [a]t times it feels dislocated causing her to walk crooked. 3 29). (AR 4 5 Plaintiff testified that she is consistently trying to lose 6 weight but that it s very difficult. 7 doctors suggested that she might have a gastric bypass, but did not 8 recommend it. 9 back would be a last resort. (Id.). (AR 30). One of Plaintiff s Her doctors have also said that surgery on her (Id.). Plaintiff explained that she 10 tries to treat her back with Hydrocodone and Soma, but that the 11 medication is no longer effective because her body is used to it. (AR 12 31). 13 14 When asked how far she could walk in minutes, Plaintiff testified 15 that she could only walk maybe two yards. 16 Plaintiff then admitted that she had walked a block from her car to 17 get to the hearing and that she was capable of walking a couple of 18 blocks. 19 her home, but then conceded that she sometimes goes grocery shopping. 20 (AR 31-32). (AR 31-32). (AR 31). However, Plaintiff next testified that she never leaves 21 22 Finally, Plaintiff testified that she did not think she could do 23 a job eight hours a day. (AR 34). Plaintiff explained that she did not 24 think she could last because standing is very painful and [s]itting 25 is painful. 26 day for four hours periodically and stays in bed for days. (AR 35). 27 Plaintiff explained that she tries not to lift more than 15 pounds 28 because it causes sharp pain in her back. (Id.). Plaintiff testified that she lays down during the 7 (AR 35). THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 1 2 3 To qualify for disability benefits, a claimant must demonstrate a 4 medically determinable physical or mental impairment that prevents him 5 or her from engaging in substantial gainful activity5 and that is 6 expected to result in death or to last for a continuous period of at 7 least twelve months. 8 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the 9 claimant incapable of performing the work he or she previously performed 10 and incapable of performing any other substantial gainful employment 11 that exists in the national economy. 12 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. Tackett v. Apfel, 180 F.3d 1094, 13 14 15 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 16 17 (1) Is the claimant presently engaged in substantial gainful 18 activity? 19 If not, proceed to step two. If so, the claimant is found not disabled. 20 21 (2) Is the claimant s impairment 22 claimant is found not disabled. 23 severe? If not, the If so, proceed to step three. 24 25 26 27 28 5 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. §§ 404.1520, 416.910. 8 1 (3) Does the claimant s impairment meet or equal the 2 requirements of any impairment listed at 20 C.F.R. Part 3 404, Subpart P, Appendix 1? 4 found disabled. If so, the claimant is If not, proceed to step four. 5 6 (4) Is the claimant capable of performing her past work? 7 so, the claimant is found not disabled. 8 If to step five. If not, proceed 9 10 (5) Is the claimant able to do any other work? 11 claimant is found disabled. 12 If not, the found not disabled. If so, the claimant is 13 14 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 15 949, 16 404.1520(b)-(g)(1), 416.920(b)-(g)(1). 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 17 18 The claimant has the burden of proof at steps one through four, and 19 the Commissioner has the burden of proof at step five. Bustamante, 262 20 F.3d at 953-54. 21 of establishing an inability to perform the past work, the Commissioner 22 must show that the claimant can perform some other work that exists in 23 significant numbers in the national economy, taking into account the 24 claimant s 25 experience. 26 Commissioner may do so by the testimony of a vocational expert or by 27 reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 28 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). If, at step four, the claimant meets his or her burden residual functional capacity, age, education and Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). 9 work The 1 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 2 claimant 3 limitations, the Grids are inapplicable and the ALJ must take the 4 testimony of a vocational expert. 5 (9th Cir. 2000). has both exertional (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 6 7 THE ALJ S DECISION 8 9 10 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since July 31, 2006. (AR 11). 11 12 At step two, the ALJ found that Plaintiff s severe impairments were 13 a degenerative disc disease of the lumbar spine, obesity, right plantar 14 fasciitis, tarsal tunnel syndrome of the right foot and bilateral flat 15 feet. (AR 11). 16 17 At step three, the ALJ concluded that Plaintiff does not have an 18 impairment or combination of impairments that meets or medically equals 19 one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 20 1. (AR 11). 21 22 At step four, the ALJ found that Plaintiff was unable to perform 23 any past relevant work. (AR 14). The ALJ found that Plaintiff had the 24 residual functional capacity ( RFC ) to lift and carry 20 pounds 25 occasionally and 10 pounds frequently with the opportunity to alternate 26 sitting 27 ladder/rope/scaffold climbing, occasional balance, stoop, kneel, and and standing at will, occasional 28 10 ramp/stair climbing, no 1 crouch, no crawling and avoidance of exposure to hazardous machinery and 2 unprotected heights. (AR 11). 3 4 5 Based on Plaintiff s RFC, the ALJ posed the following hypothetical to the vocational expert ( VE ): 6 7 [P]lease assume the existence fo the following hypothetical 8 worker, 48 years of age, 40 at onset, 12th-grade high school 9 diploma plus 2 years of college, able to lift and carry 10 occasionally 20 pounds, frequently 10, able to stand and walk 11 let s make a straight sit/stand option at will. 12 limitations, occasional use of stairs, never ladders, ropes 13 or 14 occasional kneeling, occasional crouching, no crawling, and 15 let s avoid exposure to hazardous machinery and unprotected 16 heights. 17 of the jobs you ve identified as [Plaintiff s] past work? scaffolds, occasional All right. balancing, occasional Postural stooping, Could such a hypothetical worker do any 18 19 (AR 37). 20 21 The VE responded that the job of cashier would be one that would 22 be within the hypothetical. 23 Plaintiff about her prior work as a cashier. 24 testified that she only worked part-time as a cashier and that she was 25 paid minimum wage. (Id.). (AR 38). The 26 27 28 11 ALJ The ALJ then questioned (Id.). apparently Plaintiff concluded that 1 Plaintiff s ability to work 2 substantial gainful activity. as a cashier did not qualify as a (AR 39).6 3 4 The ALJ asked the VE to assume that Plaintiff s ability to work as 5 a cashier did not qualify as a substantial gainful activity and asked 6 if there were any other jobs that such a hypothetical worker could 7 perform. 8 could work as a parking lot attendant in a booth, a ticket seller, and 9 an assembler. (AR 39). The VE responded that such a hypothetical worker (Id.). At step five, the ALJ found that there are jobs 10 that exist in significant numbers in the national economy that the 11 claimant can perform. (AR 14). 12 13 Based on the above RFC and the testimony of the VE, the ALJ 14 concluded that Plaintiff could work as a parking lot attendant, a ticket 15 seller, and an assembler. 16 that a finding of not disabled [was] . . . appropriate. (AR 15). Accordingly, the ALJ determined (Id.). 17 18 STANDARD OF REVIEW 19 Under 20 42 U.S.C. § 405(g), a district court may review the 21 Commissioner s decision to deny benefits. The court may set aside the 22 Commissioner s decision when the ALJ s findings are based on legal error 23 or are not supported by substantial evidence in the record as a whole. 24 25 6 26 27 28 At step five, the ALJ asked the VE to assume that the cashier s job was not SGA. (AR 39). In his decision, the ALJ states that in response to his hypothetical question, the VE testified that such a hypothetical individual could not perform the claimant s past relevant work. (AR 14). 12 1 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 2 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 3 4 Substantial evidence is more than a scintilla, but less than a 5 preponderance. 6 which a reasonable person might accept as adequate to support a 7 conclusion. 8 a finding, the court must consider the record as a whole, weighing 9 both evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence To determine whether substantial evidence supports that supports and evidence that detracts from the 10 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 11 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 12 reasonably support either affirming or reversing that conclusion, the 13 court may not substitute its judgment for that of the Commissioner. 14 Reddick, 157 F.3d at 720-21. If the evidence can 15 16 DISCUSSION 17 18 19 A. The ALJ Appropriately Considered The Limitations Found By Nurse Mohan 20 21 Plaintiff asserts that the ALJ failed to properly consider the 22 opinion of Nurse Mohan regarding her physical and mental impairments. 23 (Jt. Stip. at 3). This Court disagrees. 24 25 As an initial matter, Plaintiff argues that Nurse Mohan is entitled 26 to treating physician status. (Jt. Stip. 3-4). 27 opinions of treating doctors should be given more weight than the 28 opinions of doctors who do not treat the claimant. 13 In general, [t]he Orn v. Astrue, 495 1 F.3d 625, 632 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 2 725 (9th Cir. 1998)). 3 generally is afforded more weight than a nonexamining physician s 4 opinion. An examining physician s opinion, in turn, Orn, 495 F.3d at 631. 5 6 However, Nurse Mohan does not qualify as a treating physician 7 because she is not a licensed doctor. 8 Barnhart, 328 F.3d 418, 426 (8th Cir. 2003) (holding that a nurse 9 practitioner and certified therapist did not qualify as treating 10 physicians because they were not licensed doctors); see also Benton v. 11 Barnhart, 331 F.3d 1030, 1036-37 (9th Cir. 2003) (citing Shantos). 12 Indeed, Nurse Mohan signed the Primary Care Progress Record as a member 13 of the nursing staff and the initials M.A. following her name indicate 14 that she has a Master of Arts, not a medical degree. 15 Pursuant to Social Security Administration regulations, an acceptable 16 medical source is required to establish the existence of a medically 17 determinable impairment. 20 C.F.R. § 416.913(a). An acceptable medical 18 source is defined as a [l]icensed physician (medical or osteopathic 19 doctors)[.] 20 into the category of [o]ther sources which are permissible to show the 21 severity of an impairment, but not to establish the existence of an 22 impairment. 23 nurse-practitioner and certified therapist, Ms. Bookmeyer and Ms. 24 Flaherty 25 appropriate sources of evidence regarding the severity of a claimant s 26 impairment, and the affect of the impairment on a claimant s ability to 27 work. ). fit § 416.913(a)(1). (AR 150); see Shontos v. (AR 150). A nurse without a medical degree falls § 416.913(d); see also Shontos, 328 F.3d at 426 ( As a the criteria of other medical sources, who are Indeed, the ALJ was entitled to accord opinions from other 28 14 1 sources less weight than opinions from acceptable medical sources. 2 Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). 3 4 Regardless of the appropriate weight, Nurse Mohan did not 5 establish[] an opinion that clearly identifies the Plaintiff s physical 6 and mental problems, as Plaintiff claims. (Jt. Stip. at 4). Plaintiff 7 cites to page 150 of the record and states that Nurse Mohan opined that 8 the Plaintiff is unable to sit and also noted that the Plaintiff gets 9 angry, occasionally has tears, and is depressed. (Jt. Stip. at 3). 10 Page 150 of the record is a Primary Care Progress Record dated July 14, 11 2006, which appears to contain the handwritten notes of Nurse Mohan. 12 (AR 150). 13 complaints or rather if they reflect Nurse Mohan s conclusions about 14 Plaintiff s medical condition. 15 largely illegible, the Court is able to discern the following relevant 16 words and phrases: (1) [c]onsult on [b]ack pain ; (2) can t sit @ 17 school ; (3) [g]ets [a]ngry ; (4) occasionally teary ; (5) [b]ack 18 [p]ain ; and (6) [d]epression. 19 isolated words and phrases represent Nurse Mohan s conclusions about 20 Plaintiff s medical condition, they do not explain how these impairments 21 significantly limit[] [Plaintiff s] physical or mental ability to do 22 basic work activities, 20 C.F.R. § 416.920(c), and they provide no 23 indication that these impairments lasted a continuous period of at 24 least 12 months. 25 F.3d 1190, 1195 (9th Cir. 2004) ( The ALJ discounted [the treating 26 physician s] view because it was in the form of a checklist, did not 27 have supportive objective evidence, was contradicted by other statements 28 and assessments of [the plaintiff s] medical condition, and was based It is unclear whether these notes are merely Plaintiff s (Id.). While the handwritten notes are (Id.). Even assuming that these § 416.909; see also Batson v. Comm r of the SSA, 359 15 1 on [the plaintiff s] subjective descriptions of pain. ); Matney v. 2 Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) ( The ALJ need not accept 3 an opinion of a physician even a treating physician if it is 4 conclusionary and brief and is unsupported by clinical findings. ). 5 6 Plaintiff argues that the ALJ failed to consider Nurse Mohan s 7 notation, can t sit @ school. 8 reflects 9 including the opportunity to alternate sitting and standing at will. 10 (AR 11). Indeed, the ALJ specifically referenced Nurse Mohan s July 14, 11 2006 Primary Care Progress Record. 12 of back pain on July 14, 2006 and was given pain medications. (footnote 13 omitted)). 14 could sit about 6 hours in an 8-hour workday. 15 Plaintiff testified that she was able to attend college for two years 16 after the onset of her impairment, (AR 25), and was able to attend 17 school full time between 2003 and 2005. 18 testified that she could not sit at all, but rather explained that her 19 problem was sitting for prolonged periods. limitations on (Jt. Stip. at 3, 7). Plaintiff s ability to However, the RFC remain seated by (AR 13) ( The claimant complained Moreover, the state agency physician opined that Plaintiff (AR 186). (AR 37). Indeed, Plaintiff never (AR 25) (emphasis added). 20 21 Plaintiff also argues that the ALJ failed to consider Nurse Mohan s 22 notations, [g]ets [a]ngry, occasionally teary, and [d]epression. 23 (Jt. Stip. at 3, 7). 24 treated for depression, (Jt. Stip. at 3), and cites to the Disability 25 Report 26 depression. 27 to being treated for depression nor Nurse Mohan s notations demonstrate 28 that Plaintiff had depression that significantly limits [her] physical where she Plaintiff contends that she was clearly being wrote that (AR 105, 134). she was taking Imipramine for However, neither Plaintiff s reference 16 1 or mental ability to do basic work activities, 20 C.F.R. § 416.920(c), 2 or that the depression lasted a continuous period of at least 12 3 months. 4 discounted [the treating physician s] view because it was in the form 5 of 6 contradicted by other statements and assessments of [the plaintiff s] 7 medical 8 descriptions of pain. ); Matney, 981 F.2d at 1020 ( The ALJ need not 9 accept an opinion of a physician even a treating physician if it is 10 conclusionary and brief and is unsupported by clinical findings. ). 11 Indeed, these are the only references to depression anywhere in the 12 record that have been identified by the Plaintiff and the Court is 13 unable to locate any others. a § 416.909; see also Batson, 359 F.3d at 1195 ( The ALJ checklist, did condition, not and have was supportive based on [the objective evidence, plaintiff s] was subjective (Jt. Stip. at 3-4, 7). 14 15 Particularly telling is the fact that Plaintiff testified before 16 the ALJ regarding her impairments and never once mentioned depression. 17 (AR 20-38). 18 dresses herself, prepares meals, goes grocery shopping, and took college 19 courses for two years, (AR 25-26, 29), all indications that her 20 depression does not prevent her from engaging in normal activities like 21 work. 22 Plaintiff was asserting, Plaintiff s counsel also never mentioned 23 depression. To the contrary, Plaintiff testified that she bathes, Additionally, when asked by the ALJ what severe impairments (AR 20). 24 25 In sum, the Court finds that the ALJ appropriately considered the 26 limitations found by Nurse Mohan. Moreover, even if the ALJ erred, the 27 error was harmless because the ALJ incorporated limitations on sitting 28 into the RFC determination. See Stout v. Comm r, SSA, 454 F.3d 1050, 17 1 1056 (9th Cir. 2006) ( [A] reviewing court cannot consider the error 2 harmless unless it can confidently conclude that no reasonable ALJ, when 3 fully crediting the testimony, could have reached a different disability 4 determination. ). Thus, no remand is necessary. 5 6 7 B. There Was No Evidence That Plaintiff s Medication Caused Side Effects That Impaired Her Ability To Work 8 9 Plaintiff asserts that the ALJ failed to properly consider the side 10 effects of Plaintiff s medications. 11 (Jt. Stip. at 8). This Court disagrees. 12 13 Plaintiff the relies solely following on Disability medications: (1) sleepiness, dizziness, vertigo, forgetfulness, itchy feeling, 16 anger, and stomach irritation. 17 Plaintiff argues that the ALJ was obligated to consider Plaintiff s 18 claims of side effects. 19 the burden of proving that the side effects of her medication were 20 disabling. See Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) ( A 21 claimant bears the burden of proving that an impairment is disabling. ). 22 Indeed, 23 Disability 24 significantly limit[ed] [her] physical or mental ability to do basic 25 work activities, 20 C.F.R. § 416.920(c); see also Miller, 770 F.2d at 26 849 (claimant failed to meet burden of proving that an impairment is 27 disabling where he produced no clinical evidence showing that his 28 prescription narcotic use impaired his ability to work). Other than her (AR 105); (see Jt. Stip. at 7-9). (Jt. Stip. at 11). isolated not references demonstrate 18 her she 15 do for where indicated Report effects Report 14 Plaintiff s side the to However, Plaintiff bore side that effects the side in the effects 1 reference to these side effects in the Disability Report, Plaintiff 2 fails 3 administrative process. to make any other reference to side effects during the 4 5 Moreover, the Court is unable to locate and the Plaintiff has 6 failed to identify any medical evidence of side effects in the record. 7 (Jt. Stip. at 7-9, 11-12); see also Nyman v. Heckler, 779 F.2d 528, 531 8 (9th 9 disregarded to the extent they are unsupported by objective findings. ). 10 Again, in her testimony before the ALJ, Plaintiff s never mentioned 11 suffering from side effects. Cir. 1985) ( [A] claimant s self-serving statements may be (AR 20-38). 12 13 In sum, the Court finds that Plaintiff failed to meet her burden 14 of proving that her medication caused side effects that impaired her 15 ability to work. Additionally, even if the ALJ erred by failing to note 16 the potential side effects of Plaintiff s medication, the error was 17 harmless because there was no evidence of the alleged side effects 18 limiting her ability to work. 19 reviewing court cannot consider the error harmless unless it can 20 confidently conclude that no reasonable ALJ, when fully crediting the 21 testimony, could have reached a different disability determination. ). 22 Thus, no remand is necessary. See Stout, 454 F.3d at 1056 ( [A] 23 24 25 26 27 28 19 1 C. 2 Plaintiff Did Not Assert That She Suffered From A Mental Impairment 3 4 Plaintiff asserts that the ALJ failed to properly consider the 5 severity of her mental impairment. 6 (Jt. Stip. at 12). This Court disagrees. 7 8 Plaintiff argues that the ALJ should have made specific findings 9 regarding her mental impairment because she indicated that she had been 10 seen by a doctor for emotional or mental problems that limit her ability 11 to work and also indicated that she takes Imipramine for treatment of 12 her depression. (Jt. Stip. at 12). The Disability Report form asked 13 Plaintiff whether she had been seen by a doctor/hospital/clinic or 14 anyone else for emotional or mental problems that limit [her] ability 15 to work and Plaintiff wrote Yes. 16 list the doctors who treated her for these emotional or mental problems, 17 Plaintiff wrote that she had received treatment for extreme pain in 18 back/back/veins in leg, back, hypertension, hyperlipidemia, and 19 domestic violence. 20 for depression nor did she identify any doctors or psychologists that 21 she saw for her alleged mental condition. 22 to list the illnesses, injuries, or conditions that limit [her] ability 23 t o 24 deterioration/hypertension/cholesterol/degenerative arthritis of the 25 spinal 26 leg/hip/hyperlipidemia/obesity. 27 depression or any other mental condition. (AR 104). w o r k , cord/chronic (AR 103). Plaintiff did not list any treatment (Id.). P l a i n t i f f back However, when asked to Moreover, when asked w r o t e pain/fractured (AR 101). 28 20 s p i n a l vertebrae/right Plaintiff did not list (Id.). 1 Moreover, as set forth above, Plaintiff testified before the ALJ 2 and never mentioned depression. 3 ALJ what severe impairments Plaintiff was asserting, Plaintiff s counsel 4 also never mentioned depression or any other mental condition. (AR 20). 5 Given that neither Plaintiff nor her counsel perceived depression as 6 limiting her ability to work, (AR 101), the ALJ was not obligated to 7 make 8 Additionally, even if the ALJ erred, the error was harmless because 9 there was no evidence that any mental impairment limited Plaintiff s specific findings 10 ability to work. 11 (AR 20-38). regarding Indeed, when asked by the Plaintiff s See Stout, 454 F.3d at 1056. mental impairment. Thus, no remand is necessary. 12 13 D. The ALJ Appropriately Considered Plaintiff s Obesity 14 15 16 Plaintiff asserts that the ALJ failed to properly consider her obesity. (Jt. Stip. at 15-18). This Court disagrees. 17 18 Obesity is no longer a listed impairment, nor was it at the time 19 of the ALJ s decision on May 8, 2001. 20 Determination of a Disability, Endocrine System and Related Criteria, 21 64 F.R. 46122 (1999) (effective October 25, 1999) ( We are deleting 22 listing 9.09, Obesity, from appendix 1, subpart P of part 404, the 23 Listing of Impairments (the listings). ). 24 determine the effect of obesity upon a claimant s other impairments and 25 its effect on her ability to work and general health. Celaya v. Halter, 26 332 F.3d 1177, 1182 (9th Cir. 2003). 27 28 21 See Revised Medical Criteria for However, an ALJ must still 1 Contrary to Plaintiff s claim, the ALJ specifically noted 2 Plaintiff s obesity when he rejected the opinion of the state agency 3 physician and crafted a more limited RFC: 4 5 [G]iven the claimant s history of lumbar spine disc disease 6 as 7 claimant s 8 undersigned gives the claimant the benefit of the doubt and 9 rejects the assessment from the Disability Determination 10 Services medical consultant. The undersigned finds, instead, 11 that the claimant has the residual functional capacity to 12 lift 13 frequently with the opportunity to alternate sitting and 14 standing 15 ladder/rope/scaffold climbing, occasional balance, stoop, 16 kneel, and crouch, no crawling and avoidance of exposure to 17 hazardous machinery and unprotected heights. shown and by the December obesity and carry at 20 will, 2005 x-rays bilateral pounds as feet occasionally occasional well as problems, and ramp/stair 10 the the pounds climbing, no 18 19 (AR 13). 20 21 Substantial evidence in the record supports the conclusion that the 22 ALJ in this case properly considered Plaintiff s obesity. 23 reviewed medical records from treating doctors that noted obesity. 24 treating doctors, however, never restricted Plaintiff because of that 25 condition. 26 exercise, lose weight, and eat a healthy 27 158 ( Obesity - Wt. reduction advise ); AR 160 ( Obesity - Enroll pt. 28 in Instead, universally fit they instructed [exercise Plaintiff or low-salt diet. program](done) ; 22 numerous AR 166 The ALJ times The to (See AR ( Obesity 1 [recommend] low-salt diet exercise ). Plaintiff s doctors were not 2 limiting her due to her obesity, but were encouraging her to lose weight 3 and exercise. 4 5 The record does not show that Plaintiff s obesity prevented her 6 from engaging in normal work-like activities. 7 considered Plaintiff s obesity and its impact on her other impairments 8 when he gave her a more limited RFC, the Court finds that the ALJ did 9 not 10 commit error in his consideration Furthermore, as the ALJ of Plaintiff s obesity. Accordingly, no remand is necessary. 11 12 13 E. The Hypothetical Contained All Limitations Supported By Substantial Evidence 14 15 Plaintiff asserts that the ALJ did not pose a full hypothetical to 16 the VE because the hypothetical did not contain mental limitations. 17 (Jt. Stip. at 20-22). This Court disagrees. 18 19 As set forth above, see supra Parts A & C, the record does not 20 contain substantial evidence of a mental impairment. See Osenbrock, 240 21 F.3d at 1163 ( An ALJ must propose a hypothetical that is based on 22 medical assumptions supported by substantial evidence in the record that 23 reflects each of the claimant s limitations. ). Because the record does 24 not contain substantial evidence of a mental impairment, the ALJ was not 25 obligated 26 Osenbrock, 240 F.3d at 1164 ( Because [the plaintiff] did not present 27 any evidence that he suffers from sleep apnea, diabetes, organic brain 28 disorder, or hepatitis in support of his disability claim, the ALJ did to include such limitations 23 in the hypothetical. See 1 not err in failing to include these alleged impairments in the 2 hypothetical question posed to the VE. ). Thus, no remand is necessary. 3 CONCLUSION 4 5 6 Consistent with the foregoing, and pursuant to sentence four of 42 7 U.S.C. § 405(g),7 IT IS ORDERED that judgment be entered AFFIRMING the 8 decision of the Commissioner and dismissing this action with prejudice. 9 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 10 Order and the Judgment on counsel for both parties. 11 12 DATED: August 7, 2009. 13 /S/ 14 SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 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. 24
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