Tammy L. Kolodziej v. Michael J. Astrue, No. 2:2008cv08099 - Document 16 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman: For the reasons stated below, the Commissioners decision should be affirmed and this action should be dismissed with prejudice. (See document for details.) The decision of the Commissioner is supported by substantial evidence and the proper legal standards were applied. Accordingly, the decision of the Commissioner is AFFIRMED. (rla)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 TAMMY L. KOLODZIEJ, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-08099 (MLG) MEMORANDUM OPINION AND ORDER 19 Plaintiff Tammy L. Kolodziej ( Plaintiff ) seeks review of the 20 Commissioner s final decision denying her applications for Disability 21 Insurance Benefits (DIB) and Supplemental Security Income ( SSI ). For 22 the reasons stated below, the Commissioner s decision should be affirmed 23 and this action should be dismissed with prejudice. 24 25 I. Factual and Procedural Background Plaintiff was born on June 12, 1959. (Administrative Record ( AR ) 26 27 at 30, 41). She has past relevant work experience as a medical 28 assistant. (AR at 30, 45). Plaintiff has a high school education and 1 vocational training as a medical assistant and pharmacy technician. (AR 2 at 30, 45). 3 Plaintiff filed applications for DIB and SSI on October 24, 2005, 4 alleging that she has been disabled and unable to work since August 8, 5 2003, due to degenerative disc disease of the spine, instability and 6 numbness in the left leg, pain in the neck, shoulders, and arms, and 7 depression. (AR at 95, 123). Plaintiff s applications were denied 8 initially and upon reconsideration. (AR 54-58, 61-65). 9 On February 6, 2008, an administrative hearing was held before 10 Administrative Law Judge Kevin M. McCormick ( the ALJ ). (AR at 33-51). 11 On April 8, 2008, the ALJ issued a decision finding that Plaintiff was 12 not disabled. (AR at 19-32). Specifically, the ALJ found that Plaintiff 13 has not engaged in substantial gainful activity since her alleged onset 14 date, and suffers from a combination of impairments, including status 15 post lumbar fusion at L4-5 and L5-S1 due to degenerative disc disease, 16 post laminectomy syndrome, degenerative disc disease of the cervical 17 spine, obesity, and depressive disorder (not otherwise specified). (AR 18 at 22). The ALJ found that Plaintiff s impairments did not meet or 19 medically equal one of the listed impairments in 20 C.F.R., Part 404, 20 Subpart P, Appendix 1. (AR at 24). The ALJ assessed Plaintiff with the 21 residual functional capacity to perform above a range of sedentary work.1 22 (AR at 24). The ALJ concluded that Plaintiff was no longer able to 23 perform her past relevant work, but was able to perform other work that 24 25 26 27 28 1 Specifically, the ALJ found that Plaintiff was capable of: lifting and/or carrying 50 pounds occasionally and 25 pounds frequently; standing and/or walking two hours in an eight-hour workday; sitting six hours in an eight-hour workday; balancing frequently; and climbing, kneeling, crouching, and crawling occasionally. (AR at 24). Plaintiff is not able to stoop and needs to avoid exposure to moving machinery. (AR at 24). 2 1 exists in significant numbers in the economy, such as: Preparer, Jewelry 2 and Silver Industry; Patcher, House Appliance Industry; and Final 3 Assembler, Optical Goods Industry. (AR at 31). 4 5 On October 30, 2008, the Appeals Council denied review. (AR at 57). 6 Plaintiff then commenced this action for judicial review. The parties filed a Joint Stipulation of disputed issues on August 7 12, 8 sufficient reasons for rejecting Plaintiff s disability claim sand 9 Plaintiff s subjective symptom testimony. (Joint Stipulation at 4-18, 10 24-26). Plaintiff seeks remand for payment of benefits or, in the 11 alternative, remand for further administrative proceedings. (Joint 12 Stipulation at 26). The Commissioner requests that the ALJ s decision be 13 affirmed. (AR at 27). The Joint Stipulation has been taken under 14 submission without oral argument. 2009. Plaintiff contends that the ALJ failed to articulate 15 16 17 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner s decision to deny benefits. The Commissioner s decision 19 should be upheld if it is free from legal error and supported by 20 substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); 21 Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence 22 means more than a mere scintilla, Richardson, 402 U.S. at 402, but 23 less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, 24 n.10 (9th Cir. 1975). It is such relevant evidence as a reasonable mind 25 might accept as adequate to support a conclusion. Richardson, 402 U.S. 26 at 401; Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). To 27 determine whether substantial evidence supports a finding, the reviewing 28 court must review the administrative record as a whole, weighing both 3 1 the evidence that supports and the evidence that detracts from the 2 Commissioner s conclusion. Reddick, 157 F.3d at 720. If the evidence 3 can reasonably support either affirming or reversing, the reviewing 4 court may not substitute its judgment for that of the Commissioner. 5 Id. at 720-721. 6 7 III. Discussion 8 A. Periods of Disability 9 Plaintiff was diagnosed with degenerative disc disease of the 10 lumbar spine (L5-S1) in May 2000, but she was able to continue working. 11 (AR at 87, 293). She received infrequent and conservative treatment for 12 her condition. (AR at 87, 24, 268, 290, 301, 306). Plaintiff stopped 13 working in April 2002 for non-medical reasons. (AR at 87, 92, 95). 14 Plaintiff alleged that she became disabled on August 8, 2003. (AR 15 at 322). Between January and March 2004, Plaintiff received three 16 epidural steroid injections at L5-S1, which provided moderate pain 17 relief. (AR at 254, 257, 259). By July 2004, however, Plaintiff was 18 having great difficulty walking and complained of an average daily pain 19 level of 10/10. (AR at 248). Plaintiff underwent back surgery (fusion 20 with instrumentation) on August 26, 2004. (AR at 223-24). Two weeks 21 after the surgery, Plaintiff reported that her pain had significantly 22 improved. (AR at 214). Plaintiff s treating physician, Langston Holly, 23 M.D., noted that from a neurological standpoint, Plaintiff had 5/5 24 strength throughout, and her sensation was intact. (AR at 214). On 25 October 31, 2004, Plaintiff fell while walking, which caused some pain 26 on the right side. (AR at 206). Prior to that time, her pain had nearly 27 been eliminated. (AR at 206). Plaintiff s x-rays showed no significant 28 changes and neurologically, Plaintiff s strength and sensation were 4 1 normal. (AR at 206). Dr. Holly opined that Plaintiff incurred only a 2 soft tissue injury from her fall. (AR at 206). Films of Plaintiff s 3 lumbar spine taken in February 2005, showed that Plaintiff s graft and 4 instrumentation were still in position, but the lumbar fusion was not 5 yet complete. (AR at 206). About a year after surgery, on August 19, 6 2005, Dr. Holly reported that Plaintiff s fusion was solid, her strength 7 was 5/5, and her sensation was intact, except for some numbness along 8 the left thigh. (AR at 204). While Plaintiff continued to have some 9 pain, Dr. Holly believed it was myofascial in origin. (AR at 204). Dr. 10 Holly prescribed physical therapy and hydrotherapy and ordered a one- 11 year follow up visit. (AR at 203-04). Despite this positive report, Dr. 12 Holly also wrote a brief letter opining that Plaintiff was not able to 13 work. The letter, which was addressed to To Whom It May Concern, 14 stated that Plaintiff was unable to work as she is still recovering 15 from her surgery and would continue to be unable to work for one more 16 year. (AR at 202). 17 In November 2005, an MRI of Plaintiff s cervical spine revealed 18 straightening of the lordotic curve, severe right neural foraminal 19 narrowing at C5-6, moderate findings in the left neural foramen at C5-6, 20 and mild changes at C4-5. (AR at 201). In January 2006, while cleaning 21 floors, Plaintiff experienced pain in her neck that radiated down her 22 left arm. (AR at 198). Dr. Holly prescribed physical therapy and 23 medication. (AR at 198-99). Surgery was not indicated. (AR at 198). 24 On March 20, 2006, Dr. Holly completed a Medical Source Statement 25 indicating that Plaintiff was capable of working. (AR at 180-81). 26 Specifically, Dr. Holly opined that Plaintiff could lift and carry 50 27 pounds occasionally and 25 pounds frequently, stand and walk two hours 28 a day, sit for six hours a day, occasionally climb, kneel, crouch, and 5 1 crawl, but should never stoop. (AR at 180-81). 2 Plaintiff continued to receive conservative treatment for her 3 ongoing complaints of neck pain. (AR at 192, 196-97, 235-36, 238, 240- 4 44, 246). In April 2006, Dr. Holly prescribed physical therapy. (AR at 5 197). In August 2006, Plaintiff was referred to pain management for 6 evaluation. (AR at 192). In December 2006, Plaintiff was prescribed 7 medication and a series of epidural steroid injections. (AR at 240-44, 8 247). In April 2007, Plaintiff underwent a median branch nerve block at 9 C3-C7, which provided significant pain relief. (AR at 236). 10 Plaintiff contends that the ALJ should have considered her claim as 11 three discrete periods of disability. (Joint Stipulation at 8). The 12 first 13 recuperative period, and extends from Plaintiff s alleged onset date of 14 August 8, 2003 through August 2005. (Joint Stipulation at 8). The second 15 period, during which Plaintiff underwent physical therapy for her neck 16 and back, extends from August 2005 through July 2007. (Joint Stipulation 17 at 9). The third period, during which Plaintiff received treatment for 18 her neck condition and ongoing back problems, overlaps with the second 19 period and extends from February 2006 through the date of the ALJ s 20 decision. (Joint Stipulation at 9). Plaintiff asserts that the ALJ erred 21 by 22 [d]iffering [p]eriods of [d]isability. (Joint Stipulation at 4). The 23 Court finds that substantial evidence supports the ALJ s conclusion that 24 Plaintiff was not disabled. 25 26 period failing 1. pertains to to articulate the pre-surgical sufficient and reasons the for post-surgical rejecting the Pre-Surgical and Post-Surgical Period and Dr. Holly s Opinion of Disability 27 In finding Plaintiff not disabled during the purported Pre-Surgical 28 and Post-Surgical Period (August 8, 2003 through August 2005), the ALJ 6 1 thoroughly considered the medical evidence. For example, the ALJ noted 2 that there was no evidence of radiculopathy or other neurological 3 deficits before or after Plaintiff s August 2004 surgery. (AR at 22, 4 26). Dr. Holly s post-surgical examinations of Plaintiff in December 5 2004, February 2005, and August 2005 showed significant improvement in 6 her back pain. (AR at 22). The ALJ also noted that Plaintiff received 7 only conservative treatment for her back condition after surgery, 8 including physical therapy, hydrotherapy, and infrequent visits to Dr. 9 Holly. (AR at 26). While Plaintiff s fusion was not solid until August 10 2005, Dr. Holly suspected that Plaintiff s continued smoking, which had 11 violated post-operative instructions, caused the delay in recovery. (AR 12 at 205). The ALJ s interpretation of the medical evidence was rational. 13 Even if Plaintiff s interpretation of the medical evidence conflicts 14 with the ALJ s conclusion, it was within the province of the ALJ to 15 weigh the evidence presented and resolve material conflicts therein. See 16 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Batson v. Comm'r 17 of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) ( When the 18 evidence 19 interpretation, we must defer to the ALJ s conclusion ). before the ALJ is subject to more than one rational 20 Next, Plaintiff contends that the ALJ improperly rejected Dr. 21 Holly s opinion that Plaintiff was disabled. (Joint Stipulation at 9). 22 As noted above, in August 2005, Dr. Holly wrote a brief letter stating 23 that Plaintiff was unable to work due to her recovery from surgery and 24 that her disability would continue for one more year. (AR at 202). 25 Contrary 26 convincing and specific and legitimate reasons for rejecting Dr. Holly s 27 opinion of disability. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 28 1987) (explaining that ALJ may not reject a treating physician's opinion to Plaintiff s assertions, 7 the ALJ provided clear and 1 unless he makes findings setting forth specific, legitimate reasons 2 for rejecting it that are based upon substantial evidence in the 3 record ); Rodriguez v. Brown, 876 F.2d 759, 761-62 (9th Cir. 1989) 4 (requiring the ALJ to provide clear and convincing reasons to reject a 5 treating doctor s opinions that are uncontroverted). First, the ALJ 6 found that Dr. Holly s opinion on the ultimate issue of disability 7 contradicted 8 Plaintiff s specific limitations. (AR at 29); see Matney v. Sullivan, 9 981 F.2d 1016, 1019-20 (9th Cir. 1992) (explaining that the ALJ is not 10 required to accept a treating physician s opinion if it is conclusory 11 and brief and is unsupported by clinical findings ). As discussed 12 earlier, Dr. Holly s notes reflect normal neurological examinations and 13 significant improvement in Plaintiff s back pain after her August 2004 14 back surgery. (AR at 29). Second, it was unclear whether Dr. Holly was 15 referring solely to an inability to perform Plaintiff s past work as a 16 medical assistant or to all work in general. (AR at 29). It was in the 17 discretion of the ALJ to interpret the statement and resolve the 18 ambiguity. Morgan v. Commissioner of Social Security, 169 F.3d 595, 603 19 (9th Cir. 1999). Finally, even if Dr. Holly had been referring to 20 disability as defined under the Act, such a conclusory opinion was not 21 determinative of disability in this case. Magallanes v. Bowen, 881 F.2d 22 747, 751 (9th Cir. 1989). Accordingly, the ALJ s assessment of Dr. 23 Holly s opinion was supported by substantial evidence. 24 his 2. observations and findings with respect to the The Physical Therapy Period and the Neck Period 25 Plaintiff s medical records during the Physical Therapy Period 26 (August 2005 through July 2007) and the Neck Period (February 2006 27 through April 2008) also failed to establish disability. Notably, the 28 Medical Source Statement completed 8 by Dr. Holly in March 2006 1 demonstrates that Plaintiff was able to work. (AR at 26, 180-81). No 2 other physicians contradicted that opinion. (AR at 26). While Plaintiff 3 complained 4 conservative treatment, including physical therapy, medication, epidural 5 steroid shots, and a nerve block. (AR at 26, 235-36, 238, 240-42). 6 Plaintiff was seen on an as needed basis, and surgical intervention was 7 not recommended. (AR at 192, 197-98). It does not appear that Plaintiff 8 received any treatment for her neck pain after mid-2007. (AR at 27). 9 With respect to Plaintiff s back condition, the record shows that 10 Plaintiff received minimal, if any treatment during the Physical Therapy 11 Period and the Neck Period. (AR at 192, 238, 247). In December 2006, 12 Plaintiff described her back pain as 5/10. (AR at 246). X-rays of 13 Plaintiff s 14 alignment to be stable and her surgical hardware to be intact. (AR at 15 194, 196). Thus, the medical evidence is consistent with the ALJ s 16 conclusion that Plaintiff was not disabled, and the Court defers to the 17 ALJ s decision. Andrews, 53 F.3d at 1039; Batson, 359 F.3d at 1198. of ongoing lumbar neck spine pain, her consistently doctors showed prescribed Plaintiff s only spinal 18 B. 19 Plaintiff contends that the ALJ erred by discounting her subjective 20 symptom testimony. (Joint Stipulation at 13-18). Specifically, Plaintiff 21 contends that she is unable to sit for prolonged periods, and has 22 difficulty using her neck to flex, rotate and maintain a fixed position. 23 (Joint Stipulation at 13, 17; AR at 107, 110, 123). 24 Plaintiff s Subjective Pain Testimony The determination of credibility and the resolution of conflicts in 25 the 26 Commissioner. Morgan, 169 F.3d at 599. In general, an ALJ s assessment 27 of credibility should be given great weight. Nyman v. Heckler, 779 F.2d 28 528, 531 (9th Cir. 1985). However, once a claimant has presented medical testimony are functions of the 9 ALJ acting on behalf of the 1 evidence of an underlying impairment, the ALJ may not discredit the 2 claimant s testimony regarding subjective pain and other symptoms merely 3 because the symptoms, as opposed to the impairments, are unsupported by 4 objective medical evidence. Lingenfelter v. Astrue, 504 F.3d 1028, 5 1035-36 (9th Cir. 2007); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 6 1998); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 7 [T]he ALJ can reject the claimant s testimony about the severity of 8 her symptoms only by offering specific, clear and convincing reasons for 9 doing so. Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 10 1281. 11 Here, the ALJ determined that Plaintiff s medically determinable 12 impairments could have reasonably been expected to produce some of 13 Plaintiff s reported symptoms, but that the intensity, persistence and 14 limiting effects of those symptoms were not credible to the extent 15 alleged. 16 determination, the ALJ cited inconsistent statements in Plaintiff s 17 testimony. (AR at 27); Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 18 1989) (explaining that the ALJ may employ ordinary techniques of 19 credibility evaluation and may take into account prior inconsistent 20 statements or a lack of candor by the witness). For example, in three 21 different disability reports, Plaintiff consistently denied experiencing 22 side-effects from her medications. (AR at 99, 125, 149). At the hearing, 23 however, Plaintiff began claiming that her medications caused drowsiness 24 and lethargy even though there had been no significant change in her 25 medications since the filing of her last disability report. (AR at 36- 26 37, 149); see Fair, 885 F.2d at 604 n.5; Tonapetyan v. Halter, 242 F.3d 27 1144, 1148 (9th Cir. 2001). Plaintiff s subjective complaints were also 28 inconsistent with her acknowledged daily activities, which included (AR at 26). In support 10 of his adverse credibility 1 preparing meals, some household cleaning, driving, shopping, performing 2 craft activities, attending social functions, and paying bills. (AR at 3 27, 106-112); Light, 119 F.3d at 792 (inconsistencies between testimony 4 and conduct may be considered in weighing a claimant s credibility). 5 The ALJ also properly considered Plaintiff s failure to comply with 6 Dr. Holly s recommendation that she refrain from smoking after surgery. 7 (AR at 27); see Fair, 885 F.2d at 603 (holding that non-compliance with 8 prescribed treatment is proper evidence relating to the credibility of 9 the patient). 10 Finally, as discussed above, the objective medical evidence does 11 not support the allegations of disabling pain and other limitations. (AR 12 at 26). While subjective pain testimony cannot be rejected on the sole 13 ground that it is not fully corroborated by objective medical evidence, 14 the medical evidence is still a relevant factor in determining the 15 severity of the claimant s pain and its disabling effects. 20 C.F.R. §§ 16 404.1629(c)(2), 416.929(c)(2). 17 Given the ALJ s clear and convincing reasons for discounting 18 Plaintiff s subjective symptom testimony, substantial evidence supports 19 the ALJ s credibility finding. Therefore, relief is not warranted. 20 21 IV. Conclusion 22 The decision of the Commissioner is supported by substantial 23 evidence and the proper legal standards were applied. Accordingly, the 24 decision of the Commissioner is AFFIRMED. 25 Dated: September 23, 2009 26 27 28 ______________________________ Marc L. Goldman United States Magistrate Judge 11

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