Mary Crafton v. Michael J. Astrue, No. 2:2008cv08052 - Document 14 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg: IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.IT IS FURTHER ORDERED that the Clerk of the Court serve copies of thisOrder and the Judgment herein on all parties or their counsel. (ca)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARY CRAFTON, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 08-8052 AGR MEMORANDUM OPINION AND ORDER Mary Crafton filed this action on December 8, 2008. Pursuant to 28 U.S.C. 18 19 § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg 20 on February 25 and 27, 2009. (Dkt. Nos. 6-7.) On July 15, 2009, the parties filed 21 a Joint Stipulation ( JS ) that addressed the disputed issues. (Dkt. No. 13.) The 22 Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 1 I. 2 PROCEDURAL BACKGROUND 3 On October 12, 2005, Crafton filed an application for disability insurance 4 benefits alleging an onset date of November 21, 2002. Administrative Record 5 ( AR ) 12. The application was denied initially. Id. An Administrative Law Judge 6 ( ALJ ) conducted a hearing on October 24, 2007, at which Crafton, a medical 7 expert ( ME ), and a vocational expert ( VE ) testified. AR 19-49. On November 8 8, 2007, the ALJ issued a decision denying benefits. AR 9-18. Crafton requested 9 review. AR 6. On October 9, 2008, the Appeals Council denied Crafton s request 10 for review. AR 1-4. This lawsuit followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 14 decision to deny benefits. The decision will be disturbed only if it is not supported 15 by substantial evidence, or if it is based upon the application of improper legal 16 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 17 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the Court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the Court must 25 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 26 /// 27 /// 28 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that Crafton met the insured status requirements through The ALJ s Findings 12 March 31, 2008. AR 14. At Step Two of the sequential analysis, the ALJ found 13 that [t]he objective medical evidence fails to establish the existence of a 14 medically determinable impairment that could reasonably be expected to produce 15 the claimant s symptoms. Id. 16 C. 17 At Step Two of the sequential analysis, the claimant bears the burden of Step Two Analysis 18 demonstrating a severe, medically determinable impairment that meets the 19 duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 20 137, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). To satisfy the duration 21 requirement, the severe impairment must have lasted or be expected to last for a 22 continuous period of not less than 12 months. Id. at 140. 23 Your impairment must result from anatomical, physiological, 24 or psychological abnormalities which can be shown by 25 medically acceptable clinical and laboratory diagnostic 26 techniques. A physical or mental impairment must be 27 established by medical evidence consisting of signs, 28 symptoms, and laboratory findings, not only by your 3 1 statement of symptoms. 2 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. [T]he impairment must be one that 3 significantly limits your physical or mental ability to do basic work activities. 1 4 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen, 80 5 F.3d at 1290 ( [A]n impairment is not severe if it does not significantly limit [the 6 claimant s] physical ability to do basic work activities. ) (citation and internal 7 quotation marks omitted).2 8 9 In a report dated May 12, 2006, an examining physician stated Crafton told him that her symptoms started when a briefcase dropped on her left foot on 10 October 27, 1995, and that she was told she has nerve damage in that foot. The 11 examining physician did not make an independent diagnosis.3 AR 131, 134. An 12 examining physician s reiteration of a claimant s statements is insufficient to 13 establish the existence of a medically determinable impairment. Ukolov v. 14 Barnhart, 420 F.3d 1002, 1005-06 (9th Cir. 2005). Crafton s argument that the 15 examining physician diagnosed a medically determinable impairment is rejected. 16 JS 10-11, 13. 17 Subsequently, on October 31, 2006, Crafton submitted a Multiple 18 19 20 21 22 23 24 25 26 27 28 1 The ability to do basic work activities includes physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, capacities for seeing, hearing, and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers, and usual work situations, and dealing with changes in a routine work setting. Yuckert, 482 U.S. at 168 n.6 (internal quotations omitted); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 2 If a medically determinable impairment is found, the impairment or combination of impairments may be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual s ability to work. Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). That finding must be clearly established by medical evidence. Id. at 687 (citations and quotation marks omitted). 3 The examining physician opined that Crafton is capable of medium work, with unlimited sitting and walking/standing for two hours out of an 8-hour workday. AR 134. Crafton was restricted only from agility activities. Id. 4 1 Impairment Questionnaire from Dr. Jurkowitz, a treating physician. AR 136. Dr. 2 Jurkowitz states that he first treated Crafton on June 26, 1998, and his most 3 recent examination occurred on September 15, 2006. AR 137. He diagnosed 4 severe neuralgia in left lower extremity and complex regional pain syndrome. Id. 5 Dr. Jurkowitz relied on a June 30, 1998 nerve conduction study which was 6 somewhat suggestive of a mild polyneuropathy such as can be seen with 7 diabetes, hypothyroidism and various other conditions. AR 137, 179. Dr. 8 Jurkowitz s report dated June 30, 1998 stated that the mild polyneuropathy is 9 probably subclinical. AR 175. On September 7, 2007, Dr. Jurkowitz submitted 10 another Multiple Impairment Questionnaire. AR 181. 11 At the hearing on October 24, 2007, the ME testified that there is not 12 sufficient medical evidence to establish the existence of a medically determinable 13 impairment. AR 25. He stated that Dr. Jurkowitz did not do enough of an 14 evaluation to support a diagnosis of complex regional pain syndrome. Id. Dr. 15 Jurkowitz did not do tests that are commonly done. AR 31. The 1998 nerve 16 conduction study was not clinically significant because Crafton had only mild 17 abnormality, and more than mild abnormality is required before a patient 18 experiences symptoms. AR 26. Dr. Jurkowitz interpreted the results as a 19 subclinical abnormality. AR 26, 31-32. 20 On November 19, 2007, after the hearing and ALJ decision, Crafton 21 submitted a response by Dr. Jurkowitz dated October 31, 2007. AR 189. Dr. 22 Jurkowitz disagreed with the ME s opinion and stated that a very mild 23 neuropathy such as can be seen in diabetes on nerve conduction tests, may be 24 associated with a severe neuralgia. 4 AR 190. 25 26 27 28 The ME also testified that neuralgia is a synonym for pain and did not 4 The Appeals Council considered the new evidence and concluded that the information did not provide a basis for changing the ALJ s decision. AR 2, 4. Given that the Appeals Council considered the new evidence, this Court also considers it. Lingenfelter v. Astrue, 504 F.3d 1028, 1030 n.2 (9th Cir. 2007). 5 1 consider it a separate diagnosis absent an indication of which nerve has the 2 neuralgia. AR 27. As the ALJ noted, Dr. Jurkowitz s report on June 30, 1998 3 explained that he used neuralgia to mean any nerve pain but it is the same thing. 4 In this case, it is complex regional pain syndrome, which indicates specifically a 5 type of neuralgia due to a partial nerve injury. AR 176. Accordingly, it appears 6 Dr. Jurkowitz did not treat the diagnosis of neuralgia as distinct from the 7 diagnosis of complex regional pain syndrome.5 In his October 31, 2007 response 8 to the ME, Dr. Jurkowitz again defined neuralgia as nerve pain. AR 190. 9 The ALJ found that there is no objective medical evidence that the 10 claimant has a medically determinable neurological impairment. AR 17. 11 The record only contains the claimant s subjective 12 complaints of pain, i.e., neuralgia, but there are no objective 13 test results or objective findings supporting the allegations of 14 pain. First, the electrodiagnostic studies in Exhibit 3F/33 15 contain results of subclinical significance according to the 16 medical expert and Dr. Jurkowitz who performed the tests. 17 Id. The ALJ found that Dr. Jurkowitz and the examining physician accepted 18 Crafton s subjective complaints without conducting clinically significant testing to 19 substantiate the pain allegations. Id. 20 Crafton argues that the ALJ erred in relying exclusively on the ME s 21 testimony, which does not constitute substantial evidence when unsupported by 22 other evidence in the record. JS 7, 13. This argument is not well taken. The ALJ 23 noted that Dr. Jurkowitz interpreted the nerve conduction studies as being of 24 subclinical significance. AR 17, 175. The ME cited Dr. Jurkowitz s interpretation 25 of the results in support of his own opinion. AR 26. Thus, Crafton s argument 26 27 28 5 Crafton disagrees with the ME s criticism of Dr. Jurkowitz s diagnosis of neuralgia. As Crafton concedes, however, Dr. Jurkowitz attributed her neuralgia to CRPS [complex regional pain syndrome], and always attributed neuralgia to an underlying CPRS. JS 11. 6 1 that the ME s opinion was not based on independent medical evidence of record 2 is incorrect. [R]eports of the nonexamining advisor need not be discounted and 3 may serve as substantial evidence when they are supported by other evidence in 4 the record and are consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 5 (9th Cir. 1995); see also Batson v. Comm r of the SSA, 359 F.3d 1190, 1195 (9th 6 Cir. 2004) (treating physician opinion is not binding on an ALJ with respect to the 7 existence of an impairment ). 8 9 Crafton points to Dr. Jurkowitz s contrary opinion, offered after the hearing, that a very mild neuropathy such as can be seen in diabetes on nerve 10 conduction tests, may be associated with a severe neuralgia. AR 190. The ALJ 11 is responsible for resolving ambiguities and conflicts in medical testimony, 12 including any conflict in Dr. Jurkowitz s own reports. Andrews, 53 F.3d at 1039; 13 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) ( Where medical reports 14 are inconclusive, questions of credibility and resolution of conflicts in the 15 testimony are functions solely of the Secretary. ) (citation omitted). As noted 16 above, a court must defer to the Commissioner when the evidence is susceptible 17 to more than one rational interpretation. See Moncada, 60 F.3d at 523. 18 Crafton cites to internet articles that are outside the administrative record to 19 argue that [t]here is no objective test to confirm the presence of CRPS [complex 20 regional pain syndrome]. JS 7-9, 11. Crafton further argues that her treating 21 records contain the criteria identified by the internet articles she cites. JS 9. 22 However, Crafton cites no authority for the proposition that this court may look 23 outside of the administrative record in reviewing the Commissioner s decision.6 24 25 26 27 28 The ME testified that Dr. Jurkowitz should have ordered a radioactive bone scan and a sympathetic nerve block in order to investigate a diagnosis of 6 To the extent Crafton seeks to introduce new evidence in this court, Crafton makes no showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. 42 U.S.C. § 405(g). 7 1 complex regional pain syndrome.7 AR 27. In response, Dr. Jurkowitz stated that 2 these two tests are for RSD, reflex sympathetic dystrophy, which Dr. Jurkowitz 3 contends is a separate condition that Crafton does not have. AR 190. Dr. 4 Jurkowitz again relied on the nerve conduction study as objective evidence of 5 neuropathy. (Id.) The ALJ properly addressed the nerve conduction study, as 6 discussed above. Dr. Jurkowitz did not state there are no objective tests that can 7 be performed to support a diagnosis of complex regional pain syndrome, the 8 argument Crafton makes here. AR 190. 9 Social Security Ruling No. 03-2p treats Reflex Sympathetic Dystrophy 10 Syndrome (RSDS) as synonymous with Complex Regional Pain Syndrome, Type 11 I (CRPS).8 As with other conditions,9 [d]isability may not be established on the 12 basis of an individual s statement of symptoms alone. 2003 SSR LEXIS 2 at 13 *11. Instead, complex regional pain syndrome constitutes a medically 14 determinable impairment when it is documented by appropriate medical signs, 15 symptoms, and laboratory findings. Id. Signs and laboratory findings include 16 swelling, autonomic instability, abnormal hair or nail growth, osteoporosis, or 17 involuntary movements of the affected region of the initial injury.10 Id. at *11-*12. 18 19 20 21 22 23 24 25 26 27 28 7 Although Crafton characterizes the ME s testimony as medically unsound, a sympathetic nerve block has been used to diagnose and treat complex regional pain syndrome. E.g., Garcia v. Astrue, 2009 U.S. Dist. LEXIS 76320, at *13, *22 & n.6 (C.D. Cal. Aug. 25, 2009). 8 Social Security Rulings (SSRs) do not carry the force of law, but do reflect the official interpretation of the Commissioner and are entitled to some deference as long as they are consistent with the Social Security Act and regulations. Bray v. Comm r of SSA, 554 F.3d 1219, 1224 (9th Cir. 2009) (citations and internal quotation marks omitted). 9 See 20 C.F.R. § 404.1528 ( Your statements alone are not enough to establish that there is a physical or mental impairment. ); SSR 96-4p ( No symptom or combination of symptoms by itself can constitute a medically determinable impairment. ). 10 E.g., Garcia, 2009 U.S. Dist. LEXIS 76320, at *13, *16 (diagnosis of complex regional pain syndrome based on temperature, skin, and hair pattern changes, atrophy, and diminished reflexes) 8 1 By contrast, Dr. Jurkowitz did not base his diagnosis of complex regional 2 pain syndrome on such signs. AR 137, 166, 181-82. Instead, Dr. Jurkowitz 3 diagnosed complex regional pain syndrome based on Crafton s stated symptoms 4 and the June 1998 nerve conduction study.11 AR 147 ( Since the last 5 examination, the patient states that the pain has not been under control. ), 149 6 ( Since the last evaluation, the patient states that she is not doing any better in 7 terms of her pain. ), 151 ( Since the last examination, the patient states she is 8 doing slightly better . . . . ), 153 ( today she says it has been so bad the last 9 month or so that she could not even go to church ), AR 157 ( Since the last 10 examination, the patient said she has not yet heard about her appeal with the 11 Department of Social Services. Her pain is basically unchanged since the last 12 visit. ), 159, 161 ( [o]verall, she feels that her pain is worse ), 160 ( my report of 13 December 5, 2005 merely discusses the pain situation the patient was still in, and 14 I gave no conclusions or interpretations ), 162 (Since the last examination she 15 states that her pain suddenly got much worse. ). See Ukolov, 420 F.3d at 1005- 16 06 (treating physician s restatements of a patient s symptoms fell far short of 17 what is required to establish an impairment ). 18 19 The ALJ s finding that the objective medical evidence did not establish a medically determinable impairment is supported by substantial evidence. 20 D. 21 To determine whether a claimant s testimony regarding subjective pain or 22 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 23 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). Credibility 24 First, the ALJ must determine whether the claimant has presented 25 objective medical evidence of an underlying impairment which could reasonably 26 27 28 11 The one exception after the alleged onset date is a record dated December 3, 2002, in which Dr. Jurkowitz noted swelling and tenderness of the left foot that started after a bad reaction to Vicodin. AR 168. 9 1 be expected to produce the pain or other symptoms alleged. Id. (citations 2 omitted). 3 As discussed above, the ALJ found no objective medical evidence of a 4 medically determinable impairment that could reasonably be expected to produce 5 the alleged symptoms. AR 14. However, the ALJ did consider Crafton s 6 subjective testimony. When there is no evidence of malingering,12 the ALJ can 7 reject the claimant s testimony about the severity of her symptoms only by 8 offering specific, clear and convincing reasons for doing so. Lingenfelter, 504 9 F.3d at 1036 (citations omitted). In making a credibility determination, the ALJ 10 must specifically identify what testimony is credible and what testimony 11 undermines the claimant s complaints. Greger v. Barnhart, 464 F.3d 968, 972 12 (9th Cir. 2006) (citation omitted). If the ALJ s credibility finding is supported by 13 substantial evidence in the record, we may not engage in second-guessing. 14 Thomas, 278 F.3d at 959; Morgan v. Commissioner of the Social Security 15 Administration, 169 F.3d 595, 600 (9th Cir. 1999). 16 The ALJ considered Crafton s testimony that: (1) she took early retirement 17 in 2002 because her employer downsized; (2) she volunteers at her church 18 feeding the homeless and giving out clothing for four days per week, four hours 19 per day; and (3) she drives, dusts, cleans up, does laundry, and goes food 20 shopping. AR 15, 17, 35-36. By contrast, the ALJ noted that in response to her 21 counsel s questions, Crafton testified that her pain is 9 out of 10, she could barely 22 walk when she took early retirement, she can stand no more than one hour total 23 in an 8-hour day, and can sit no more than one hour total in an 8-hour day. AR 24 15, 37-40. As the ALJ also noted, Dr. Jurkowitz found a pain level of 9 out of 10, 25 an ability to sit less than 1 hour in an 8-hour day, and an ability to stand/walk less 26 than 1 hour in a 8-hour day. AR 16, 139, 183. 27 28 12 The ALJ did not find that Crafton was malingering. 10 1 An ALJ may properly consider inconsistencies or discrepancies in a 2 claimant s statements, and inconsistencies between a claimant s statements and 3 her activities. Thomas, 278 F.3d at 958-59. There are clear inconsistencies 4 between Crafton s volunteer and other activities, and her stated inability to sit or 5 stand more than a total of one hour per day. Crafton does not attempt to explain 6 these inconsistencies. In addition, in response to the ALJ s question, Crafton 7 testified that she took early retirement and not a disability retirement in 2002. AR 8 34-35. The ALJ s credibility assessment is supported by substantial evidence. 9 See Carmickle v. Comm r, SSA, 533 F.3d 1155, 1162 (9th Cir. 2008). The 10 inconsistencies are significant in this case given the lack of objective medical 11 evidence of a medically determinable impairment and the treating physician s 12 reliance on Crafton s subjective symptoms. 13 IV. 14 ORDER 15 16 17 18 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 19 20 21 DATED: October 7, 2009 ALICIA G. ROSENBERG United States Magistrate Judge 22 23 24 25 26 27 28 11

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.