Lynette H. McAlister v. Michael J. Astrue, No. 2:2010cv04932 - Document 20 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Lynette H. McAlister (McAlister) filed this action on July 9, 2010. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on July 27 and August 9, 2010. (Dkt. Nos. 8-9.) On May 2,2011, 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 affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LYNETTE H. McALISTER, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-4932 AGR MEMORANDUM OPINION AND ORDER Lynette H. McAlister ( McAlister ) filed this action on July 9, 2010. 18 19 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 20 magistrate judge on July 27 and August 9, 2010. (Dkt. Nos. 8-9.) On May 2, 21 2011, the parties filed a Joint Stipulation ( JS ) that addressed the disputed 22 issues. The court has taken the matter under submission without oral argument. 23 Having reviewed the entire file, the court affirms the decision of the 24 Commissioner. 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On February 29, 2008, McAlister filed an application for supplemental 4 security income. On April 15, 2008, she filed an application for disability 5 insurance benefits. McAlister alleged a disability onset date of August 28, 2007. 6 Administrative Record ( AR ) 12. The applications were denied initially and upon 7 reconsideration. Id. McAlister requested a hearing before an Administrative Law 8 Judge ( ALJ ). On January 6, 2010, the ALJ conducted a hearing at which 9 McAlister and a vocational expert testified. AR 12, 27-46. On January 22, 2010, 10 the ALJ issued a decision denying benefits. AR 12-17. On May 5, 2010, the 11 Appeals Council denied the request for review. AR 1-4. This action followed. 12 II. 13 STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 15 decision to deny benefits. The decision will be disturbed only if it is not supported 16 by substantial evidence, or if it is based upon the application of improper legal 17 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 18 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 19 Substantial evidence means more than a mere scintilla but less than a 20 preponderance it is such relevant evidence that a reasonable mind might 21 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 22 determining whether substantial evidence exists to support the Commissioner s 23 decision, the court examines the administrative record as a whole, considering 24 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 25 evidence is susceptible to more than one rational interpretation, the court must 26 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 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 McAlister met the insured status requirements through 12 The ALJ s Findings December 31, 2012. AR 12, 14. 13 McAlister has the following severe impairments: Type II diabetes mellitus, 14 mild degenerative disc disease of the lumbar spine and degenerative 15 osteoarthritis of the right shoulder. AR 14. Through the date last insured, the 16 ALJ found McAlister had the residual functional capacity ( RFC ) to perform light 17 work with occasional climbing, balancing, stooping, kneeling, crouching, and 18 crawling. AR 15. 19 McAlister was unable to perform her past relevant work. AR 16. However, 20 the ALJ found that there are jobs that exist in significant numbers in the national 21 economy that the claimant can perform such as cafeteria attendant, information 22 clerk, routing clerk, telephone information clerk, charge account clerk, and 23 addressing clerk. AR 16-17. 24 C. 25 McAlister contends the ALJ's RFC assessment was improper because he Residual Functional Capacity 26 failed to perform a function-by-function analysis as required by Social Security 27 Ruling ("SSR") 96-8p. 28 /// 3 1 The RFC assessment must contain a narrative discussion describing how 2 the evidence supports each conclusion, citing specific medical facts (e.g., 3 laboratory findings) and nonmedical evidence (e.g., daily activities, 4 observations). SSR 96-8p. The ALJ must also explain how he or she resolved 5 material inconsistencies or ambiguities in the record. Id. 6 The ALJ summarized the entire medical record. AR 14-15. He cited and 7 considered the medical evidence identified by McAlister. AR 15 (x-rays dated 8 2/27/08; x-rays dated 7/22/08; MRI dated 10/03/08), 186, 265, 288-90, 293. The 9 ALJ discussed the opinion of the examining physician, Dr. Sedgh, who performed 10 an internal medicine examination of McAlister on July 30, 2008. AR 214. He 11 reviewed x-rays dated July 30, 2008 of her cervical spine, lumbar spine, right 12 shoulder and left knee. AR 218-22. He noted that McAlister reported a history of 13 rheumatoid arthritis which caused constant pain and stiffness in the joints of her 14 right knee, feet, shoulders, hands, left wrist and neck which lasted all day. AR 15 214. She also reported a history of recently diagnosed diabetes which caused 16 frequent urination, thirstiness and numbness of the hands and hypertension. Id. 17 On examination, he found most of her systems within normal limits with the 18 exception of limited range of motion of the cervical spine, lumbar spine, shoulders 19 and knees. AR 216-17. The x-rays showed mild to moderate degenerative disc 20 disease of the mid- and lower cervical spine, mild degenerative disc disease of 21 the lumbar spine, degenerative osteoarthritis of the right AC shoulder joint, and a 22 normal right knee. AR 218. 23 Dr. Sedgh opined McAlister could lift and carry 20 pounds occasionally and 24 10 pounds frequently; sit, stand and walk for 6 hours in an 8-hour day; and 25 occasionally kneel, crouch and stoop. AR 218. The ALJ also considered the 26 August 2008 opinions of state agency physicians Dr. Boetcher and Dr. Sciara, 27 both of whom found McAlister capable of light work with postural limitations. AR 28 4 1 15, 226-230, 231-235.1 The ALJ s reliance on these assessments meets the 2 requirements of SSR 96-8p.2 3 The ALJ gave significant weight to Dr. Sedgh s opinion because his 4 conclusions were "consistent with the objective findings and the evidence of 5 record." AR 15. The ALJ found McAlister had the RFC to perform light work with 6 occasional climbing, balancing, stooping, kneeling, crouching and crawling. Id. 7 An examining physician's opinion constitutes substantial evidence when it 8 is based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 632 (9th 9 Cir. 2007). McAlister argues that although Dr. Sedgh conducted his own 10 examination and ordered x-rays, he did not review all of the medical records cited 11 by the ALJ. However, the record does not contain medical opinions that were 12 inconsistent with Dr. Sedgh s opinion or indicated McAlister s impairments caused 13 greater limitations than those assessed. McAlister does not argue that the ALJ 14 was required to call a medical expert to review her medical records. The ALJ did 15 not err. 16 D. 17 McAlister contends the ALJ improperly failed to provide clear and 18 Credibility convincing reasons for rejecting her subjective symptom testimony. 19 To determine whether a claimant s testimony regarding subjective pain or 20 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 21 22 23 24 25 26 27 28 1 The record contains two physical RFC assessments performed by state agency physicians Dr. Boetcher and Dr. Sciara. AR 226-30, 231-35. On August 18, 2008, Dr. Boetcher opined that McAlister could lift and carry 20 pounds occasionally and 10 pounds frequently; sit, stand and walk for 6 hours in an 8-hour day; and push and pull without limitation; but was limited to occasional climbing, stooping, kneeling, crouching and crawling; and no balancing. AR 227-28. Three months later, on November 28, 2008, Dr. Sciara reviewed all the evidence and affirmed the assessment of Dr. Boetcher. AR 235. 2 See Lind v. Astrue, 370 Fed. Appx. 814, 817 (9th Cir. 2010). Further, SSR 96-8p does not require a function-by-function analysis for medical conditions that the ALJ found unsupported. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 5 1 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine 2 whether the claimant has presented objective medical evidence of an underlying 3 impairment which could reasonably be expected to produce the pain or other 4 symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 5 1991) (en banc)). Second, if the claimant meets this first test, and there is no evidence of 6 7 malingering, the ALJ can reject the claimant s testimony about the severity of her 8 symptoms only by offering specific, clear and convincing reasons for doing so. 9 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 10 determination, the ALJ must specifically identify what testimony is credible and 11 what testimony undermines the claimant s complaints. Greger v. Barnhart, 464 12 F.3d 968, 972 (9th Cir. 2006) (citation omitted). [T]o discredit a claimant s 13 testimony when a medical impairment has been established, the ALJ must 14 provide specific, cogent reasons for the disbelief. Orn v. Astrue, 495 F.3d 625, 15 635 (9th Cir. 2007) (citations and quotation marks omitted). The ALJ must cite 16 the reasons why the claimant s testimony is unpersuasive. Id. (citation and 17 quotation marks omitted). The ALJ may consider (a) inconsistencies or 18 discrepancies in a claimant s statements; (b) inconsistencies between a 19 claimant s statements and activities; (c) exaggerated complaints; and (d) an 20 unexplained failure to seek treatment. Thomas, 278 F.3d at 958-59. 21 At the hearing, McAlister testified she stopped working in August of 2007 22 because of pain in her hip, feet, knee and neck. AR 31. She had diabetes. AR 23 37. She testified she could not sit or stand for more than one hour in an 8-hour 24 day, could not lift anything and had been spending all day laying down or 25 sleeping for the last year and a half. AR 35-36, 40. 26 The ALJ rejected McAlister s subjective symptom testimony because (1) it 27 was inconsistent with her level of treatment; (2) it was inconsistent with evidence 28 /// 6 1 showing no disuse muscle atrophy; and (3) it was inconsistent with her other 2 statements in the record. AR 16. The ALJ found that the medical record showed McAlister received only 3 4 conservative treatment. AR 16. She did not receive physical therapy or 5 treatment from a pain clinic. AR 16. Evidence of minimal and conservative 6 treatment is a clear and convincing reason for rejecting a claimant s subjective 7 complaints. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) ("evidence of 8 conservative treatment is sufficient to discount a claimant's testimony regarding 9 severity of an impairment") (citation and quotation marks omitted); Meanel v. 10 Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (subjective symptom testimony 11 properly discredited where claimant received only "minimal, conservative 12 treatment"). The ALJ properly found that McAlister s testimony that she spent all day 13 14 lying down or sleeping for the last one and a half years was inconsistent with the 15 lack of evidence of disuse muscle atrophy. AR 16. See Meanel, 172 F.3d at 16 1114 (lack of muscular atrophy inconsistent with testimony that claimant required 17 to lie in fetal position all day). McAlister s testimony was also inconsistent with 18 the statements in her May 15, 2008 Exertion Questionnaire indicating she 19 sometimes cooked, washed dishes and cleaned her house. AR 16, 129-30. 20 Thomas, 278 F.3d at 958-59 (ALJ may consider inconsistencies in claimant s 21 statements). The ALJ provided clear and convincing reasons for rejecting McAlister s 22 23 subjective symptom testimony. 24 /// 25 /// 26 /// 27 /// 28 /// 7 1 IV. 2 ORDER 3 4 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 5 6 DATED: August 26, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 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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