Jacqueline F. Cox v. Michael J. Astrue, No. 2:2009cv04343 - Document 14 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Jacqueline Cox filed this action on June 17, 2010. Pursuant to 28 U.S.C. §636(c), the parties consented to proceed before Magistrate Judge Rosenberg on July 13, 2009, and Jun e 24, 2010. On January 25, 2010, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court remands this matter to the Commissioner for proceedings consistent with this opinion. IT IS HEREBY ORDERED that the matter is remanded to the Commissioner for a consultative physical examination and further proceedings consistent with this opinion. (See Order for details.) (mp)
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Jacqueline F. Cox v. Michael J. Astrue Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JACQUELINE F. COX, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 09-4343 AGR MEMORANDUM OPINION AND ORDER Jacqueline Cox filed this action on June 17, 2010. Pursuant to 28 U.S.C. § 18 19 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on 20 July 13, 2009, and June 24, 2010. (Dkt. Nos. 6, 12.) On January 25, 2010, the 21 parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. The 22 Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court remands this matter to the 23 24 Commissioner for proceedings consistent with this opinion. 25 /// 26 /// 27 /// 28 /// Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On June 2, 2008, and June 17, 2008, respectively, Cox filed an application 4 for disability insurance benefits and supplemental security income benefits 5 alleging a disability onset date of April 29, 2008. AR 14. The applications were 6 denied initially. AR 14, 85. An Administrative Law Judge ( ALJ ) conducted a 7 hearing on January 29, 2009, at which Cox, a medical expert ( ME ) and a 8 vocational expert testified. AR 28-71. On March 9, 2009, the ALJ issued a 9 decision denying benefits. AR 11-22. On April 23, 2009, the Appeals Council 10 denied the request 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 is eligible for benefits, only if his 5 physical or mental impairment or impairments are of such severity that he is not 6 only unable to do his previous work but cannot, considering his age, education, 7 and work experience, engage in any other kind of substantial gainful work which 8 exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. 9 Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that Cox met the insured status requirements through The ALJ s Findings 12 March 31, 2009. AR 16. Cox has the following severe impairments: 13 Degenerative Disc Disease of the cervical spine, arthritis, and obesity. AR 17. 14 Cox has the residual functional capacity ( RFC ) to lift or carry 20 pounds 15 occasionally, 10 pounds frequently, stand or walk for 2 hours in an 8-hour work 16 day with normal breaks, sit for 6 hours in an 8-hour work day and a sit stand 17 option is required. She is precluded from ladders, ropes and scaffolds or from 18 working around hazards such as heights or moving machinery. She is able to 19 push and pull with foot pedals occasionally. She is able to balance, stoop, 20 crouch, kneel, bend, and crawl occasionally. AR 19. Cox cannot perform her 21 past relevant work. AR 21. However, there are jobs that exist in significant 22 numbers in the national economy that the claimant can perform, such as Call 23 Out Operator and Addresser. AR 21-22. 24 C. 25 The RFC determination measures the claimant s capacity to engage in RFC 26 basic work activities. Bowen v. New York, 476 U.S. 467, 471, 106 S. Ct. 2022, 27 90 L. Ed. 2d 462 (1986). The RFC represents the most [an individual] can still 28 do despite [his] limitations. 20 C.F.R. § 404.1545(a). It is an administrative 3 1 finding, not a medical opinion. 20 C.F.R. § 404.1527(e)(2). The RFC takes into 2 account both exertional limitations and non-exertional limitations. When there is 3 conflicting medical evidence, the Secretary must determine credibility and resolve 4 the conflict. Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation 5 and quotation marks omitted). 6 Cox argues that there is insufficient evidence from a treating or examining 7 physician by which an RFC determination can be made. JS 6-7. Accordingly, 8 Cox argues that the ALJ s RFC assessment is not supported by substantial 9 evidence. JS 7. Cox urges the Court to remand the matter for a consultative 10 11 examination. It is the claimant s duty to prove she is disabled. Mayes v. Massanari, 276 12 F.3d 453, 459 (9th Cir. 2001). See 42 U.S.C. § 423(d)(5)(A) (the claimant must 13 furnish medical and other evidence of her disability); 20 C.F.R. § 404.1512(c) 14 ( You must provide medical evidence showing that you have impairment(s) and 15 how severe it is during the time you say you are disabled. ). 16 The ALJ . . . has an independent duty to fully and fairly develop the record 17 and to assure that the claimant s interests are considered. Tonapetyan v. Halter, 18 242 F.3d 1144, 1150 (9th Cir. 2001) (citations and quotation marks omitted). An 19 ALJ s duty to develop the record further is triggered only when there is 20 ambiguous evidence or when the record is inadequate to allow for proper 21 evaluation of the evidence. Mayes, 276 F.3d at 459-60. 22 The ALJ gave great weight to the ME s testimony. AR 18, 21. The ME 23 testified that the frustrating thing from my point of view is the lack of any actual 24 physical examination in the record in any detail. AR 57-58. The ME s RFC 25 assessment was based on the totality of the record. AR 55-56. Cox testified 26 that she can walk 10-15 minutes, sit 10-15 minutes and stand 10-15 minutes 27 before she has to readjust her posture. AR 44-46. The ME testified that her 28 testimony was reasonable based on the medical record, and he accepted her 4 1 testimony. AR 57, 61. Substantial evidence supports the sit/stand/walk and 2 sit/stand option portion of the RFC. However, no physical examination supports 3 the remainder of the RFC. The ME testified that since the gamut for a diagnosis 4 of anterolisthesis can be completely asymptomatic to obviously severe, you 5 usually like to see a rather detailed physical examination that, unfortunately, is 6 missing from the record. AR 58. Tonapetyan, 242 F.3d at 1150-51 (ME s 7 concern over the lack of a complete record upon which to assess claimant s 8 impairment). 9 10 When, as here, medical sources provide insufficient evidence, the ALJ may order a consultative examination.1 20 C.F.R. §§ 404.1519, 404.1519a, 416.917. 11 D. 12 To determine whether a claimant s testimony regarding subjective pain or Credibility 13 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 14 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 15 First, the ALJ must determine whether the claimant has presented 16 objective medical evidence of an underlying impairment which could reasonably 17 be expected to produce the pain or other symptoms alleged. Id. (quoting 18 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). The ALJ found 19 that Cox s medically determinable impairments could reasonably be expected to 20 cause her symptoms. AR 19. 21 Second, if the claimant meets this first test, and there is no evidence of 22 malingering, the ALJ can reject the claimant s testimony about the severity of her 23 symptoms only by offering specific, clear and convincing reasons for doing so. 24 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 25 26 27 28 1 Cox does not challenge the ALJ s rejection of her treating physician s opinion as unsupported by medical evidence, description of treatment, or any explanation of Cox s work-related functional impairments. AR 20. The ALJ did not err. Moreover, the ALJ correctly notes that the existing medical records indicate mild findings. AR 17-18. 5 1 determination, the ALJ must specifically identify what testimony is credible and 2 what testimony undermines the claimant s complaints. Greger v. Barnhart, 464 3 F.3d 968, 972 (9th Cir. 2006) (citation omitted). [T]o discredit a claimant s 4 testimony when a medical impairment has been established, the ALJ must 5 provide specific, cogent reasons for the disbelief. Orn v. Astrue, 495 F.3d 625, 6 635 (9th Cir. 2007) (citations and quotation marks omitted). The ALJ must cite 7 the reasons why the claimant s testimony is unpersuasive. Id. (citation and 8 quotation marks omitted). The ALJ may consider (a) inconsistencies or 9 discrepancies in a claimant s statements; (b) inconsistencies between a 10 claimant s statements and activities; (c) exaggerated complaints; and (d) an 11 unexplained failure to seek treatment. Thomas, 278 F.3d at 958-59. 12 The ALJ found that Cox s statements concerning the intensity, persistence 13 and limiting effects of these symptoms are not credible to the extent they are 14 inconsistent with the above residual functional capacity assessment. AR 19-20. 15 The ALJ articulated four reasons: (1) her subjective complaints are 16 disproportionate to the medical record; (2) treatment record is sparse; (3) any 17 treatment is conservative; and (4) she is fairly active and maintains a fairly wide 18 range of daily activities. AR 20. 19 Although lack of objective medical evidence supporting the degree of 20 limitation cannot form the sole basis for discounting pain testimony, it is a factor 21 that an ALJ may consider in assessing credibility. Burch v. Barnhart, 400 F.3d 22 676, 681 (9th Cir. 2005). There is no dispute that the existing medical record 23 does not support the degree of Cox s subjective complaints. JS 12. 24 [E]vidence of conservative treatment is sufficient to discount a claimant s 25 testimony. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007); see also 26 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). An unexplained or 27 inadequately explained failure to seek treatment is also a valid consideration in 28 determining credibility. See Orn, 495 F.3d at 636. Cox testified that she has 6 1 continuous pain, which she rated as a 10 on a scale of 1-10, with 10 being the 2 most severe pain you could ever have in your life. AR 35. The ALJ could 3 reasonably infer that a claimant experiencing such extreme pain on a continuous 4 basis would seek treatment. The ALJ is correct that the treatment records are 5 sparse. Such treatment as Cox obtained (medication, physical therapy) is 6 conservative. Tommasetti, 533 F.3d at 1040 (describing physical therapy and 7 anti-inflammatory medication as conservative treatment). 8 9 The ALJ found that Cox was able to perform independent self-care activities, she exercises, does grocery shopping, walks, cooks, performs 10 household chores, and she is able to walk 1/3 of a mile. AR 17, 20 (citing AR 11 237 (state agency physician opinion),2 which in turn relied on Cox s 12 questionnaire, AR 168, 170-173). The ALJ found that these activities were 13 inconsistent with Cox s subjective allegations of severe pain at a level of 10. 14 Such inconsistencies may properly be considered. Thomas, 278 F.3d at 958-59 15 (inconsistencies between claimant s testimony and conduct). 16 The ALJ s credibility finding is supported by substantial evidence. If the 17 ALJ s credibility finding is supported by substantial evidence in the record, we 18 may not engage in second-guessing. Id. at 959; (citing Morgan v. Comm r of the 19 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). 20 IV. 21 ORDER 22 IT IS HEREBY ORDERED that the matter is remanded to the 23 Commissioner for a consultative physical examination and further proceedings 24 consistent with this opinion. 25 26 27 28 2 Cox notes that the ALJ incorrectly refers to a consultative examiner s report. JS 12-13 (citing AR 20). The ALJ correctly identified the report as a state agency physician s opinion when he first referred to it. AR 17. The ALJ s error when citing the same report a second time is harmless and inconsequential. 7 1 2 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. 3 4 5 DATED: July 20, 2010 ALICIA G. ROSENBERG United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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