Minerva Escobedo v. Michael J. Astrue, No. 2:2010cv04938 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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Minerva Escobedo v. Michael J. Astrue Doc. 16 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MINERVA ESCOBEDO, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 10-04938 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Minerva Escobedo is blind in one eye, but the Administrative Law 18 Judge nevertheless concluded that she retained the residual functional capacity to work at 19 all exertional levels, with limitations imposed as a result of having her vision confined to 20 one eye. Relying on the vocational expert’s testimony, the Administrative Law Judge 21 further concluded that, although Plaintiff could not perform her past relevant work, there 22 were sufficient jobs in the economy that she could perform notwithstanding her 23 impairment, and therefore she was not entitled to receive disability benefits. In this Court, 24 Plaintiff challenges the Commissioner’s decision on two grounds. 25 First, Plaintiff asserts that the Administrative Law Judge erroneously relied 26 on the testimony of the vocational expert, because the hypothetical question he posed to 27 the vocational expert did not include a limitation based on Plaintiff’s limited English skills. 28 A vocational expert’s testimony can stand as substantial evidence supporting the Dockets.Justia.com 1 Administrative Law Judge’s decision if the hypothetical questions he answers fairly 2 describe the claimant’s limitations. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 3 Moreover, a hypothetical question which asks the vocational expert to credit a specific 4 portion of the record adequately incorporates limitations which that portion of the record 5 addresses, without the need for the Administrative Law Judge to spell them out. Thomas 6 v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002). Here, the Administrative Law Judge 7 established on the record that the vocational expert had been present during Plaintiff’s 8 testimony [AR 54], and it was during that testimony that Plaintiff stated that she had 9 completed only the sixth grade, and that was in Mexico. [AR 30-31] The administrative 10 hearing was conducted with a Spanish-speaking interpreter [AR 29], so it was clear that 11 Plaintiff’s English language skills were limited, and Plaintiff herself testified that she could 12 not read or write English, and only could say a few words. [AR 31] Thus, all this 13 information was before the vocational expert at the time that she testified, and the 14 Administrative Law Judge’s hypothetical question asked the vocational expert to assume 15 a person of Plaintiff’s education and background. [AR 55] Thus, it is clear that the 16 language limitation was well within the understanding of the vocational expert when she 17 testified, and therefore there is no merit to Plaintiff’s first argument. 18 Plaintiff’s second argument is that the Administrative Law Judge erred in 19 rejecting Plaintiff’s own testimony. An Administrative Law Judge is entitled to use 20 ordinary techniques of credibility evaluation, Fair v. Bowen, 885 F.2d 597, 604 n.5 (1989). 21 Here, the Administrative Law Judge relied on the fact that there was little objective 22 evidence of any limitations beyond those she imposed, and that Plaintiff’s statements were 23 inconsistent. [AR 21-22] These are valid bases for disbelieving a claimant. Rollins v. 24 Massanari, 261 F. 3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 25 1991) (en banc). There was no documentation in the opthamologists’ records of any 26 problem with Plaintiff’s other eye. As for her claim that she was severely depressed, there 27 was no medical record indicating depression, and certainly not severe depression. There 28 was an indication that Plaintiff took an anti-anxiety medication (but, according to her own -2- 1 written statement, only on an as-needed basis [AR 152]), and the Administrative Law 2 Judge noted the anti-anxiety medication, but correctly noted that it was not an anti- 3 depressant. [AR 22] Plaintiff now asserts that the Administrative Law Judge should have 4 developed the record further, but that responsibility arises only when the record is 5 ambiguous or insufficient to support a decision, Mayes v. Massanari, 276 F.3d 453,459-60 6 (9th Cir. 2001) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001), factors 7 that are not true here. The Administrative Law Judge also noted that Plaintiff could 8 perform a wide range of household chores, and correctly noted that there was no record 9 evidence to support that any slowing-down in performing these chores meant that 10 Plaintiff’s impairments were disabling. [AR 22] The Administrative Law Judge was 11 measured in her assessment of Plaintiff’s credibility, and did not err. 12 13 Neither of Plaintiff’s arguments justifies relief. In accordance with the foregoing, therefore, the decision of the Commissioner is affirmed. 14 15 DATED: February 22, 2011 16 17 18 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 -3-
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