Janice L. Person v. Michael J. Astrue, No. 2:2010cv02796 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Janice L. Person v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 JANICE L. PERSON, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-02796-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 (“JS”), and the Commissioner has filed the certified Administrative 26 Record (“AR”). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge (“ALJ”) properly Dockets.Justia.com 1 2 evaluated Plaintiff’s excess pain testimony; and 2. Whether the ALJ properly evaluated Plaintiff’s past relevant 3 4 work. (JS at 3.) 5 6 This Memorandum Opinion will constitute the Court’s findings of 7 fact and conclusions of law. After reviewing the matter, the Court 8 concludes that the decision of the Commissioner must be affirmed. 9 10 I 11 THE ALJ PROPERLY EVALUATED PLAINTIFF’S CREDIBILITY 12 AS TO EXCESS PAIN TESTIMONY 13 At the hearing before the ALJ, held on September 9, 2008 (AR 20- 14 46), Plaintiff appeared and testified. As summarized by the ALJ, she 15 testified that she experiences severe lower back pain and must sit 16 with her legs raised. 17 and walking, and in fact, can only stand for ten minutes and can 18 barely walk. 19 Considering this evidence, and the other evidence in the record, the 20 ALJ found that Plaintiff’s medically determinable impairments could 21 reasonably be expected to cause the alleged symptoms; however, her 22 symptoms as to intensity, persistence and limiting effects were found 23 to be not credible to the extent they are inconsistent with the 24 Residual Functional Capacity (“RFC”) assessed by the ALJ. (AR 18.) 25 The RFC assesses that Plaintiff can perform light work with certain 26 exceptions which limit her to occasionally climbing stairs, ladders or 27 scaffolding, and occasionally bending, balancing, stooping, kneeling, 28 crouching, or crawling. (AR 15.) She has significant problems sitting, standing She believes she could carry about 15 pounds. (AR 18.) 2 1 In assessing Plaintiff’s credibility, the ALJ set forth the 2 credibility assessment factors described in Social Security Ruling 3 (“SSR”) 96-7p. (AR 16.) 4 Plaintiff asserts that “while the ALJ’s rationale has some 5 credence prior to early 2007, it does not have credence thereafter.” 6 (JS at 10.) 7 It is well established that the ALJ must articulate clear and 8 convincing reasons for rejecting pain and limitation testimony. 9 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. 10 See Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 11 The ALJ relied upon four factors as articulated in the decision 12 to discount Plaintiff’s credibility. The Court will examine these to 13 determine if they constitute clear and convincing reasons. 14 The ALJ first found that the medical evidence of record did not 15 support the degree of pain and dysfunction alleged by Plaintiff. (AR 16 16-18.) 17 Inconsistencies between the objective medical evidence and the 18 subjective complaints made by a claimant are only one factor that an 19 ALJ may consider in the credibility analysis, although they cannot 20 form the sole basis to discount pain testimony. (See SSR 96-7p.) 21 Plaintiff received consultative examinations (“CE”) from three 22 examining physicians, as noted in the ALJ’s decision. (See AR at 16- 23 17.) 24 Plaintiff received an orthopedic CE from Dr. Sophon on December 25 21, 2005 at the request of the Department of Social Services. (AR 346- 26 350.) 27 found that Plaintiff “does not have significant physical impairment 28 and there are no functional limitations.” (AR 350.) Dr. Sophon’s findings were unremarkable, and thus, Dr. Sophon 3 1 Plaintiff received an internal medicine CE from Dr. Pourabbani on 2 November 13, 2006 at the request of the Department of Social Services. 3 (AR 407-411.) 4 Plaintiff can lift or carry 50 pounds occasionally and 25 pounds 5 frequently, that her push and pull abilities are unlimited in both 6 upper and lower extremities, that she is limited in kneeling, crawling 7 and bending to occasional, she can stand and walk for six hours and 8 sit for eight hours in an eight-hour day. (AR 411.) 9 Pourabbani also found that Plaintiff can perform medium exertional 10 Based upon his examination, Dr. Pourabbani found that Thus, Dr. level work. 11 Finally, Plaintiff received another orthopedic CE at the request 12 of the Department of Social Services on July 6, 2007 from Dr. Conaty. 13 After conducting a physical examination, Dr. Conaty came up with 14 similar findings as the previous two physicians, noting “minimal 15 objective clinical or radiographic findings to support [Plaintiff’s] 16 subjective complaints.” Although finding some functional limitations, 17 Dr. Conaty also found that Plaintiff could perform medium exertional 18 level work. He also found no indication for the need for the use of a 19 cane. (AR 438.) 20 Despite these consistent examination results, Plaintiff asserts 21 that her condition substantially deteriorated after mid-2007, noting 22 a report from Dr. Ovalle.1 23 The ALJ specifically addressed Dr. Ovalle’s opinion, and 24 determined to accord it less than great weight. He noted that Dr. 25 Ovalle completed a musculoskeletal questionnaire based on his having 26 27 28 1 Plaintiff asserts that Dr. Ovalle examined her in August 2007; however, although his report was prepared at that time, it indicates that his examination occurred in April 2007. (AR 504.) 4 1 seen Plaintiff on two occasions, that his opinion is not supported by 2 the objective evidence and relies primarily on Plaintiff’s self- 3 reported history of falling. 4 abnormalities 5 inability to perform at the RFC identified, and remarked that Dr. 6 Ovalle himself opined in his August 2007 letter that Plaintiff would 7 only need four to six weeks off work. 8 Ovalle 9 Plaintiff’s anticipated duration of symptoms, deferred to the opinion 10 is identified not an by The ALJ noted that the neurological Dr. orthopedic Ovalle would not result in an Finally, the ALJ noted that Dr. specialist and when asked about of an orthopedic specialist. (AR 16, citing AR 435-439, 504.) 11 The Court cannot conclude that the ALJ erroneously evaluated the 12 numerous medical opinions in the record in concluding that there was 13 a 14 results of these examinations. 15 on Dr. Ovalle’s evaluation to support her claim that her physical 16 condition substantially deteriorated after mid-2007, the fact is that 17 Plaintiff was examined by Dr. Conaty after mid-2007, at which time her 18 examination was almost entirely unremarkable. 19 anything in the record that would support such a sudden and drastic 20 deterioration in Plaintiff’s condition as she posits. 21 substantial disconnect between Plaintiff’s complaints and the While Plaintiff seems to largely rely There is little if As a second reason, the ALJ noted that Plaintiff returned to work 22 as a domestic caretaker in November 2006. (AR 16, 175, 389.) She 23 provided care for two bipolar adults. 24 been fairly active since she returned to work for others, that her 25 life was much more normal since she began doing this and that she was 26 functioning better since she had work responsibilities. (AR 181, 184, 27 203.) 28 should not be relevant to the credibility assessment, neither the She self-reported that she had While Plaintiff, in her Reply, argues that this work episode 5 1 statute nor the regulations cited by Plaintiff provide as much. The 2 fact is that Plaintiff undertook work which entailed a physical 3 exertion level commensurate with the RFC assessed by the ALJ, late in 4 2006, at the time she was claiming to be disabled due to pain. 5 Court agrees that this work history was relevant in the credibility 6 analysis. 7 2001). The See Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 8 As a third reason, the ALJ noted that Plaintiff had received pain 9 medications not commensurate with her claimed degree of pain. (AR 18.) 10 While this is a recognized credibility assessment factor (see 20 11 C.F.R. §§404.1529(c)(3)(v), 416.929(c)(3)(v)), Plaintiff notes that 12 she has had serious side effects from more powerful medications. 13 Court certainly cannot find the fact that Plaintiff might have side 14 effects from one more powerful medication to be irrelevant; however, 15 it does not appear from the record that Plaintiff was unable, for 16 financial or other reasons, to secure treatment or to seek to obtain 17 more effective forms of medication than over-the-counter aspirin, if 18 indeed the pain was as extreme and disabling as she claimed. 19 Court thus cannot find that the third factor as assessed by the ALJ 20 was improperly evaluated. The The 21 Finally, the ALJ noted Plaintiff’s level of daily activities to 22 demonstrate that she was more functional than she claimed. (See AR 15, 23 18.) While Plaintiff asserted that her pain prevents her from driving 24 in excess of a five-mile radius, she in fact did drive herself to the 25 hearing before the ALJ, which took 30 minutes, and she specifically 26 indicated that her only problem was a little bit of traffic. (AR 29.) 27 Similarly, Plaintiff notes that she has a number of pet cats, but 28 because of her pain, she cannot bend over to feed them or change their 6 1 litter box. This conflicts with the report of Plaintiff’s mother-in- 2 law, Ms. Pinkney, who indicates that Plaintiff feeds her pets. (AR 3 232.) 4 Circuit cases which hold that in order to be disabled, Plaintiff’s 5 daily activities must not be such as to leave her in a vegetative 6 state. (See cases cited at JS 11.) 7 credibility assessment, the extreme limitations cited by Plaintiff in 8 her 9 substantial level with the actual daily activities that she performs. 10 In addition to the foregoing activities, she performs light housework, 11 shops for groceries, prepares meals, and is able to water her plants. 12 While 13 environment in order to defeat a claim for disability, nevertheless, 14 it is the contradiction between Plaintiff’s claims of pain and its 15 debilitating effects, and what she actually does on a daily basis that 16 constitutes a relevant credibility factor. 17 error in the ALJ’s assessment in this regard. The Court certainly agrees with Plaintiff’s citation to Ninth ability these to perform activities Nevertheless, for purposes of exertional need not be activities conflicts transferrable to on the a work The Court cannot find 18 19 II 20 THE ALJ PROPERLY CHARACTERIZED PLAINTIFF’S PAST RELEVANT WORK 21 Plaintiff’s work history and earnings report indicate that she 22 worked as a retail manager until 1994, including 1993. (AR 127-129, 23 149, 158, 268.) 24 self-employed, between 1994 and May 2005, working six days per week, 25 eight hours per day. (AR 18, 127-130, 149, 159.) 26 At the Thereafter, she worked in domestic services while administrative hearing, a vocational expert (“VE”) 27 testified that Plaintiff was self-employed as a “personal attendant” 28 (see Dictionary of Occupational Titles [“DOT”] No. 309.674-014). This 7 1 constituted “light” work. (AR 42-43.) 2 Plaintiff argues that there is no clear evidence in the record 3 that she worked through 1993 as a retail store manager. 4 significance of the date last worked is that in order for past work to 5 be considered at Step Four of the sequential evaluation process, it 6 must have occurred within 15 years of the final determination of 7 disability. 8 ALJ submitted his decision on December 3, 2008. (AR 19.) 9 in order for Plaintiff’s work as a retail manager to be considered as 10 substantial gainful employment (“SGA”) and as past relevant work, she 11 must have worked past December 3, 1993. 12 Commissioner failed to develop the record to make this determination, 13 and simply assumed that she did work after December 3, 1993 as a 14 retail 15 Plaintiff’s earnings report in 1993 indicates almost the identical 16 amount of income earned as in 1992. (See AR 127-129.) 17 Commissioner asserts that it was reasonable for the ALJ to conclude 18 that Plaintiff worked through 1993. 19 made a reasonable inference from the record based on the earnings 20 report. 21 her years worked as an assistant manager as “1991-1993,” while she 22 listed her work in domestic services as “1994-5/2005.” (AR 149.) 23 would be reasonable to infer that Plaintiff was capable of indicating 24 in her report that she did not work through 1993, since she did the 25 same type of delineation concerning her subsequent job. 26 does not view this inference as a failure to develop the record on the 27 part of the ALJ. 28 by ALJs are often made where the evidence is susceptible to more than See 20 C.F.R. §§404.1565(a), 416.965(a); SSR 82-61. sales manager. The The The Therefore, Plaintiff argues that the Commissioner, however, notes that Therefore, the The Court agrees that the ALJ In addition, the Court notes that Plaintiff herself listed It The Court The types of decisions made in Social Security cases 8 1 one rational interpretation. It is the ALJ’s job, indeed, to make 2 reasonable inferences from the evidence. 3 Similarly, Plaintiff’s subsequent self-employment in domestic 4 services, characterized as “personal attendant” by the VE, constituted 5 SGA. 6 at 25-27) that this work is properly analyzed as SGA pursuant to the 7 regulations and applicable case law. (See JS at 26, citing 20 C.F.R. 8 §§404.1575(a)(2), 416.975(a)(2); Byington v. Chater, 76 F.3d 246, 249 9 (9th Cir. 1996).) Plaintiff does not dispute the Commissioner’s analysis (see JS Plaintiff’s fallback argument, set forth in her 10 Reply, is that there is no basis in the record to determine whether 11 her self-employment activity is comparable to that of unimpaired 12 individuals who are in similar businesses. 13 there was no “market analysis.” (JS at 29.) 14 argument 15 interpreted the regulations and case law to determine that Plaintiff’s 16 work as a personal attendant was relevant in the Step Four sequential 17 analysis. 18 The is without final issue merit, and that concerning Plaintiff argues that The Court deems that this the Commissioner Plaintiff’s past properly relevant work 19 concerns her argument that the ALJ did not correctly analyze her role 20 as a child monitor, which constitutes medium work, one of various 21 services she performed as part of her business. (AR 43.) 22 relies on the case of Valencia v. Heckler, 751 F.2d 1082, 1086-87 (9th 23 Cir. 1985), which holds, generally, that the ALJ may not segregate out 24 particular duties and tasks of a job to classify past relevant work 25 based on the least demanding function of a job. 26 occurred 27 representative occupation among various occupations as to all of the 28 tasks performed. (AR 18, 43.) in this case. Rather, the ALJ Plaintiff But that is not what selected the most The Court finds no error in this 9 1 2 3 4 analysis. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 5 6 7 DATED: February 10, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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