Darcy Lou Sutherland v. Michael J. Astrue, No. 2:2008cv08610 - Document 18 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. The decision of the Social Security Commissioner is AFFIRMED. (See Order for details) (db)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 DARCY LOU SUTHERLAND, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-08610-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Darcy Lou 19 Commissioner s final decision 20 Security 21 Security Income ( SSI ) benefits. For the reasons set forth below, the 22 decision of the Administrative Law Judge ( ALJ ) is affirmed. Disability Sutherland Insurance seeks denying ( SSDI ) her judicial review application benefits and for of the Social Supplemental 23 24 I. Background 25 Plaintiff filed her application for SSDI and SSI benefits on March 26 22, 2006, alleging disability as of August 26, 2005 due to a protruding 27 disc in her lower back. (Administrative Record ( AR ) at 8, 134-137, 28 138-143, 153.) Plaintiff was born on August 24, 1956 and was 50 years 1 old at the time of her application. (AR at 8, 134.) She completed high 2 school, and has been employed as a sales associate, secretary, and 3 ticket seller. (AR at 15, 33, 154.) 4 Plaintiff s application was denied initially on August 4, 2006 and 5 upon reconsideration on January 4, 2007. (AR at 74-78, 80-84.) An 6 administrative hearing was held on June 9, 2008 before ALJ Joseph D. 7 Schloss. (AR at 19-38.) Medical expert Dr. Arthur Laurber (AR at 19-32) 8 and 9 testified at the administrative hearing. vocational expert ( VE ) Sandra Fioretti (AR at 33-37) also 10 On August 5, 2008, ALJ Schloss denied Plaintiff s applications for 11 benefits. (AR at 8-16.) The ALJ found that Plaintiff had not engaged in 12 substantial gainful activity since the alleged onset date of August 25, 13 2006. (AR at 10.) The ALJ further found that Plaintiff had the severe 14 impairments of degenerative disc disease of the lumbar and cervical 15 spine and bilateral carpal tunnel syndrome. 20 C.F.R. 416.920(c). (AR at 16 11.) However, the ALJ determined that Plaintiff s impairments did not 17 meet and were not medically equal to, one of the listed impairments in 18 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR at 12.) The ALJ also 19 determined that Plaintiff retained the residual functional capacity 20 ( RFC ) to perform light work with the following limitations: Plaintiff 21 cannot climb ladders, ropes, or scaffolds. She can occasionally climb 22 stairs/ramps, balance and crawl. Because of mild bilateral carpal tunnel 23 syndrome, she can frequently finger and handle. She cannot work around 24 dangerous, moving machinery. (AR at 12.) The ALJ determined that 25 Plaintiff was able to perform her past relevant work as a sales 26 associate, secretary and ticket seller. (AR at 15.) Therefore, the ALJ 27 concluded that Plaintiff was not disabled within the meaning of the 28 Social Security Act. 20 C.F.R. § 416.920(f). (Id.) 2 1 The Appeals Council denied review (AR at 1-3), and Plaintiff timely 2 commenced this action for judicial review. On September 8, 2009, the 3 parties filed a Joint Stipulation ( Joint Stp. ) of disputed facts and 4 issues. Plaintiff contends that the ALJ erred by: (1) failing to 5 properly consider the Plaintiff s RFC; and (2) failing to properly 6 determine whether Plaintiff could perform her past relevant work. (Joint 7 Stp. at 5.) Plaintiff seeks remand for a new administrative hearing. 8 (Joint Stp. at 41-42.) 9 10 II. Standard of Review Under 11 42 U.S.C. § 405(g), a district court may review the 12 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 13 decision must be upheld unless the ALJ s findings are based on legal 14 error or are not supported by substantial evidence in the record as a 15 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. 16 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 17 such evidence as a reasonable person might accept as adequate to support 18 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 19 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 20 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 21 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 22 evidence supports a finding, the reviewing court must review the 23 administrative record as a whole, weighing both the evidence that 24 supports 25 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 26 the 27 conclusion, the reviewing court may not substitute its judgment for 28 that of the ALJ. Robbins, 466 F.3d at 882. and evidence the can evidence support that detracts either 3 from affirming the Commissioner s or reversing the ALJ s 1 2 III. Discussion A. The Residual Functional Capacity Determination Was Supported By Substantial Evidence 3 4 Plaintiff contends that the ALJ failed to properly formulate her 5 RFC. (Joint Stp. at 6.) More specifically, Plaintiff argues that the ALJ 6 erred in finding that she was able to frequently finger and handle 7 objects. (AR at 12.) Plaintiff contends that, in determining her RFC, 8 the ALJ improperly evaluated the medical evidence and improperly found 9 that she was not fully credible regarding her subjective complaints. 10 (Joint Stp. at 11-13.) 11 A claimant s RFC is what she is capable of doing despite her 12 physical and mental limitations. 20 C.F.R. § 404.1545(a)(1); Cooper v. 13 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). RFC is an assessment 14 of an individual s ability to do sustained work-related physical and 15 mental activities in a work setting on a regular and continuing basis. 16 SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996).1 An RFC 17 assessment is ultimately an administrative finding reserved to the 18 Commissioner. 20 C.F.R. § 404.1527(e)(2). However, an RFC determination 19 is based on all of the relevant evidence, including the diagnoses, 20 treatment, observations, and opinions of medical sources, such as 21 treating and examining physicians. Id. 22 The ALJ correctly determined that Plaintiff was able to perform 23 light work and, while minimally limited because of mild bilateral carpal 24 25 1 26 27 28 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary s interpretation of its regulations. Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991) (en banc). 4 1 tunnel syndrom, that she was able to frequently finger and handle 2 objects. (AR at 12.) In doing so, the ALJ noted that the medical 3 evidence in the record, including the opinions of Plaintiff s treating 4 physicians, showed that Plaintiff had only mild radiculopathy and 5 minimal bilateral carpal tunnel syndrome. (AR at 13, 218, 233.) 6 In making this finding, the ALJ relied on the opinion of the 7 consultative examining physician, who determined that Plaintiff retained 8 the 9 consultative examination conducted on June 28, 2006, Dr. Herbert Johnson 10 determined that, based on mild carpal tunnel syndrom in her left hand, 11 Plaintiff s manipulative activities, such as handling and fingering, 12 would be limited in her left hand to frequently. (AR at 14, 197.) It was 13 proper for the ALJ to rely on the opinion of the examining physician in 14 determining Plaintiff s RFC. See Andrews v. Shalala, 53 F.3d 1035, 1041 15 (9th Cir. 1995) (holding that the opinion of an examining physician may 16 constitute 17 clinical findings). capacity to frequently substantial finger evidence and where it handle. is In based an on orthopedic independent 18 The ALJ also properly relied upon the opinion of the testifying 19 medical expert, Dr. Laurber, and the reviewing state agency physicians. 20 (AR at 14.) After hearing Plaintiff s testimony and reviewing the 21 medical record, Dr. Laurber concluded that Plaintiff had only mild 22 radiculopathy and could therefore perform light work. (AR at 14, 21.) 23 The state agency physicians determined that Plaintiff could perform 24 light work, including frequent handling and fingering with [her] left 25 hand due to probable carpal tunnel syndrome. (AR at 14, 212, 223.) As 26 the ALJ correctly noted, the opinions of the state agency reviewing 27 physicians were consistent with that of the orthopedic consultative 28 examiner, the medical expert, and the medical evidence in the record. 5 1 (AR at 15.) See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) 2 ( The opinions of non-treating or non-examining physicians may also 3 serve as substantial evidence when the opinions are consistent with 4 independent clinical findings or other evidence in the record. ). 5 The ALJ also found that Plaintiff was not wholly credible regarding 6 her 7 substantial evidence. At the orthopedic consultative examination, Dr. 8 Johnson found evidence of symptom magnification and exaggerated pain. 9 (AR at 13, 193, 195.) Dr. Johnson also deemed Plaintiff s reliability to 10 be less than average in that she had very poor recall of specific dates 11 and 12 complaints. (AR at 193.) See Tonapetyan, 242 F.3d at 1148 (holding that 13 the ALJ may use ordinary techniques of credibility evaluation, such as 14 considering any inconsistent statements in a claimant s testimony); see 15 also 20 C.F.R. § 404.1529(c)(4) (providing for consideration of whether 16 there are any conflicts between a claimant s statements and the rest of 17 the evidence). subjective she was complaints. very vague as This to finding the onset was and also nature supported of her by back 18 The ALJ also appropriately relied on Plaintiff s conservative 19 treatment and her activities of daily living in discounting her claim of 20 disabling pain. The ALJ noted that Plaintiff only occasionally takes 21 non-prescription medication for pain and is not receiving any other 22 treatment. (AR at 13, 43-44.) It was also noted that Plaintiff s 23 treating physician did not consider surgery necessary. (AR at 13, 219.) 24 See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (finding that the 25 claimant s allegations of persistent, severe pain and discomfort were 26 belied by minimal conservative treatment ). Finally, he ALJ properly 27 noted that Plaintiff could prepare food, do household chores, and drive. 28 (AR at 12-13, 189.) See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 6 1 1990) (finding that the claimant s ability to take care of her personal 2 needs, 3 groceries ... may be seen as inconsistent with the presence of a 4 condition which would preclude all work activity ) (citing Fair, 885 5 F.2d at 604). prepare easy meals, do light housework and shop for some 6 Accordingly, I find that the ALJ s determination that Plaintiff 7 retained the RFC to perform light work was supported by substantial 8 evidence and that no relief is warranted on this claim of error. 9 10 B. The ALJ s Finding that Plaintiff Is Capable of Performing Her Past Relevant Work is Supported By the Record 11 Plaintiff next claims that the ALJ erred in finding that Plaintiff 12 was capable of performing her past relevant work as a sales associate, 13 secretary and ticket seller. (Joint Stp. at 27.) However, this finding 14 is also supported by substantial evidence. 15 Plaintiff bears the initial burden of establishing disability by 16 showing that a physical or mental impairment prevents [her] from 17 engaging in any of [her] previous occupations. Allen v. Secretary of 18 Health & Human Serv., 726 F.2d 1470, 1472 (9th Cir. 1984). It is 19 Plaintiff s burden to prove that she cannot return to her former type of 20 work, not just to her former job. Villa v. Heckler, 797 F.2d 794, 798 21 (9th Cir. 1986). A claimant is not disabled if she can perform the 22 duties of her past relevant work. See 20 C.F.R. § 404.1520(f). 23 The ALJ s findings under step four of the sequential evaluation 24 process, as well as other evidence in the record, supports the ALJ s 25 determination that Plaintiff is capable of performing her past relevant 26 work. First, the ALJ properly relied on the testimony of the VE in 27 finding that, because she retained the RFC to perform light work, 28 including frequent fingering and handling, Plaintiff was capable of 7 1 performing her past relevant work as a sales associate, secretary and 2 ticket seller. (AR at 15, 33-34.) The hypothetical that the ALJ posed to 3 the VE incorporated all of the relevant medical evidence in the record 4 as well as the requirements of Plaintiff s past relevant work as a sales 5 clerk, 6 hypothetical, the VE determined that Plaintiff was capable of performing 7 her past relevant work. (AR at 33-34.) The ALJ was entitled to rely on 8 the vocational expert in reaching his disability determination. See 20 9 C.F.R. § 416.960(b)(2) (ALJ may rely on a vocational expert s expertise 10 and knowledge concerning the physical and mental demands of a claimant s 11 past relevant work, either as the claimant actually performed it or as 12 generally performed ). secretary and ticket seller. (AR at 33.) Based on the 13 The ALJ also appropriately relied on the medical evidence, as well 14 as the opinions of the examining consultative physician, the medical 15 expert and the State Agency physicians, in determining that Plaintiff s 16 limitations would not prevent her from performing her past work, 17 including work requiring frequent fingering and handling. 18 Finally, contrary to Plaintiff s contention, the ALJ was not 19 required to provide a Dictionary of Occupational Titles ( DOT ) citation 20 for her past relevant work. The regulations provide that the ALJ may use 21 the services of a VE or other resources, such as the DOT, but do not 22 require the ALJ to do so. 20 C.F.R. § 404.1560(b)(2). 23 For all of these reasons, I find that the ALJ s conclusion that 24 Plaintiff can perform her past work is supported by substantial evidence 25 in the record. 26 // 27 // 28 // 8 1 2 3 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. 4 5 DATED: September 18, 2009 6 7 8 ______________________________ Marc L. Goldman United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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