Maria Gloria Zapata Lozano v. Michael J. Astrue, No. 2:2010cv05805 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 MARIA GLORIA ZAPATALOZANO, Plaintiff, 13 v. 14 15 16 17 18 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ 19 I. 20 ) Case No. CV 10-5805 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) SUMMARY On August 11, 2010, plaintiff Maria Gloria Zapata-Lozano ( plaintiff ) 21 filed a Complaint seeking review of the Commissioner of Social Security s denial 22 of plaintiff s application for benefits. The parties have consented to proceed 23 before a United States Magistrate Judge. 24 This matter is before the Court on the parties cross motions for summary 25 judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The 26 Court has taken both motions under submission without oral argument. See Fed. 27 R. Civ. P. 78; L.R. 7-15; August 18, 2010 Case Management Order, ¶ 5. 28 /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On January 21, 2004 and February 28, 2005, plaintiff filed applications for 7 Supplemental Security Income benefits and Disability Insurance Benefits. 8 (Administrative Record ( AR ) 23, 24). Plaintiff asserted that she became 9 disabled on February 1, 2001,2 due to carpal tunnel syndrome, rheumatoid 10 arthritis, joint, back, neck and right hand pain, diabetes, high cholesterol, 11 headaches from medications, and depression. (AR 23, 113). The ALJ examined 12 the medical record and heard testimony from plaintiff (who was represented by 13 counsel) and a vocational expert on October 18, 2007, and January 14, 2008. (AR 14 675, 687). 15 On July 22, 2008, the ALJ determined that plaintiff was disabled for the 16 closed period of February 1, 2001 through March 30, 2003 but that, due to medical 17 improvement (i.e., the severity of plaintiff s rheumatoid arthritis no longer met the 18 criteria of Listing 14.09D of 20 C.F.R. Part 404, Subpart P, Appendix 1), plaintiff 19 was not disabled from April 1, 2003 through the date of the decision. (AR 24, 2820 29). The ALJ also found that beginning on April 1, 2003 (1) plaintiff suffered 21 from the following severe impairments: seronegative rheumatoid arthritis, 22 23 24 25 26 27 28 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 Although plaintiff alleged that she became disabled on either February 1, 2001 or February 20, 2001, the ALJ gave plaintiff the benefit of the doubt and used February 1 as plaintiff s onset date. (AR 23). 2 1 diabetes mellitus, non-toxic goiter, spondylosis of the lumbosacral spine, 2 hypertension, bradycardia, depression, and migraine headaches (AR 27); 3 (2) plaintiff s impairments, considered singly or in combination, did not meet or 4 medically equal one of the listed impairments (AR 29); (3) plaintiff retained the 5 residual functional capacity to lift and carry 20 pounds occasionally and 10 6 pounds frequently, stand and/or walk for six out of eight hours, and sit for six 7 hours in an eight-hour workday with certain exertional limitations3 (AR 29); 8 (4) plaintiff could not perform her past relevant work (AR 33); (5) there are jobs 9 that exist in significant numbers in the national economy that plaintiff could 10 perform, specifically cafeteria attendant, assembly machine tender, and product 11 assembler (AR 34); and (6) plaintiff s allegations regarding her limitations were 12 not entirely credible (AR 30). 13 The Appeals Council denied plaintiff s application for review. (AR 6-8). 14 III. APPLICABLE LEGAL STANDARDS 15 A. 16 To qualify for disability benefits, a claimant must show that she is unable to Sequential Evaluation Process 17 engage in any substantial gainful activity by reason of a medically determinable 18 physical or mental impairment which can be expected to result in death or which 19 has lasted or can be expected to last for a continuous period of at least twelve 20 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 21 § 423(d)(1)(A)). The impairment must render the claimant incapable of 22 performing the work she previously performed and incapable of performing any 23 other substantial gainful employment that exists in the national economy. Tackett 24 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 25 26 27 28 3 The ALJ determined that plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk for six out of eight hours, and sit for six hours in an eighthour workday; could occasionally climb, balance, stoop, kneel, crouch, and crawl; and could frequently reach, handle and finger bilaterally. (AR 29). 3 1 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 2 sequential evaluation process: 3 (1) 4 5 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 6 her ability to work? If not, the claimant is not disabled. If so, 7 proceed to step three. 8 (3) 9 Does the claimant s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. 10 Part 404, Subpart P, Appendix 1? If so, the claimant is 11 disabled. If not, proceed to step four. 12 (4) Does the claimant possess the residual functional capacity to 13 perform her past relevant work? If so, the claimant is not 14 disabled. If not, proceed to step five. 15 (5) Does the claimant s residual functional capacity, when 16 considered with the claimant s age, education, and work 17 experience, allow her to adjust to other work that exists in 18 significant numbers in the national economy? If so, the 19 claimant is not disabled. If not, the claimant is disabled. 20 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 21 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 22 The claimant has the burden of proof at steps one through four, and the 23 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 24 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 25 (claimant carries initial burden of proving disability). 26 B. 27 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 28 benefits only if it is not supported by substantial evidence or if it is based on legal 4 1 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 3 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 4 mind might accept as adequate to support a conclusion. Richardson v. Perales, 5 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 6 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 7 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 8 To determine whether substantial evidence supports a finding, a court must 9 consider the record as a whole, weighing both evidence that supports and 10 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 11 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 12 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 13 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 14 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 15 IV. DISCUSSION 16 A. Substantial Evidence Supports the ALJ s Finding of Medical 17 Improvement 18 1. 19 Pertinent Law Once a claimant is found disabled under the Social Security Act, a 20 presumption of continuing disability arises. See Bellamy v. Secretary of Health & 21 Human Services, 755 F.2d 1380, 1381 (9th Cir. 1985) (citation omitted); Mendoza 22 v. Apfel, 88 F. Supp. 2d 1108, 1113 (C.D. Cal. 2000) (citations omitted). Benefits 23 cannot be terminated unless substantial evidence demonstrates medical 24 improvement in the claimant s impairment such that the claimant becomes able to 25 engage in substantial gainful activity. See 42 U.S.C. § 423(f); 20 C.F.R. 26 §§ 404.1594, 416.994; Mendoza, 88 F. Supp. 2d at 1113 (citations omitted). 27 /// 28 /// 5 1 Medical improvement is defined as: 2 [A]ny decrease in the medical severity of your impairment(s) which 3 was present at the time of the most recent favorable medical decision 4 that you were disabled or continued to be disabled. A determination 5 that there has been a decrease in medical severity must be based on 6 changes (improvement) in the symptoms, signs and/or laboratory 7 findings associated with your impairment(s) . . . . 8 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i). 9 Although the claimant retains the burden of proof, the presumption of 10 continuing disability shifts the burden of production to the Commissioner to 11 produce evidence to meet or rebut the presumption. Bellamy, 755 F.2d at 1381 12 (citation omitted). 13 14 2. Analysis Plaintiff contends that substantial evidence does not support the ALJ s 15 finding that her disability ended on April 1, 2003 due to medical improvement. 16 The Court disagrees. 17 First, the medical evidence reasonably rebuts the presumption that 18 plaintiff s disability continued beyond March 30, 2003. As the ALJ noted, on 19 March 11, 2003, Dr. Nick Teophilov, a treating rheumatologist, indicated that 20 although plaintiff still had disease activity, there was no flare, and plaintiff then 21 stopped treating with that doctor. (AR 29, 289, 335). From May through 22 September 2003, Dr. Randall Gilbert, another treating rheumatologist, noted that 23 plaintiff had no definite joint swelling or rashes and demonstrated good fist 24 closure with no effusions. (AR 29, 474-75, 483, 485). The ALJ noted that, 25 although plaintiff s symptoms waxed and waned thereafter, such symptoms were 26 controlled with medication, and there were even long periods of time where 27 plaintiff was apparently symptom free or at least suffered only mild symptoms that 28 did not require treatment. (AR 30-31). For example, on June 17, 2003, Dr. 6 1 Gilbert discontinued plaintiff s treatment with Kineret, but restarted it on July 1, 2 2003. (AR 30, 482-83). Between plaintiff s September 2003 visit with Dr. Gilbert 3 and a December 28, 2004 visit with Dr. Teophilov there is no evidence of 4 treatment by a rheumatologist, which supports the ALJ s inference that plaintiff s 5 condition remained relatively stable during that period with no significant flare 6 ups. (AR 30, 475, 511, 670). Although plaintiff s symptoms increased in 7 December 2004, Dr. Teophilov questioned why Kineret 100/d injections had been 8 discontinued since plaintiff had a good response to the treatment without side 9 effects. (AR 31, 511, 581, 624). On February 1, 2005 plaintiff was admitted to 10 Glendale Memorial for a one week history of fever and increasing joint pain. 11 (AR 31, 506, 652, 665-67). Dr. Teophilov told Glendale Memorial doctors that 12 plaintiff s Methotrexate was a low dose. (AR 31, 652). On June 17, 2005, Dr. 13 Teophilov observed that plaintiff s symptoms were much better when she was 14 treated with Enbrel, and by October 18, 2005 plaintiff s dose of Enbrel was 15 permanently increased to twice a week. (AR 31, 580, 620). Although on February 16 8, 2006, plaintiff complained about increased symptoms, she apparently stopped 17 seeing Dr. Teophilov after that date. (AR 31, 579, 614). On October 4, 2007, Dr. 18 Ramesh Kesavalu, another rheumatologist, noted plaintiff s history of rheumatoid 19 arthritis, but observed no clinical activity. (AR 31, 578, 612). Moreover, x-rays 20 of plaintiff s hands have been consistently negative, as was an x-ray of her 21 cervical spine. (AR 31, 282-83, 286, 662). 22 Second, while plaintiff alleges that her limitations have not dramatically 23 changed, and that she continues to experience disabling limitations similar to 24 those she had prior to April 1, 2003 (Plaintiff s Motion at 5), this Court will not 25 second-guess the ALJ s reasonable determination that the medical records show 26 medical improvement which would permit plaintiff to engage in substantial 27 gainful activity, even if such evidence could give rise to inferences more favorable 28 to plaintiff. See Robbins, 466 F.3d at 882. 7 1 Finally, even assuming, for argument s sake, that plaintiff s subjective 2 symptoms of pain and fatigue were related to fibromyalgia, plaintiff fails to 3 demonstrate functional limitations stemming from her fibromyalgia beyond those 4 already accounted for in the ALJ s residual functional capacity assessment. In any 5 event, as discussed below, the ALJ found plaintiff s subjective complaints of pain 6 and fatigue lacking in credibility, irrespective of the pathological cause. 7 Accordingly, plaintiff is not entitled to a reversal or remand on this basis. 8 B. 9 10 The ALJ Properly Evaluated Plaintiff s Credibility 1. Pertinent Law Questions of credibility and resolutions of conflicts in the testimony are 11 functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th 12 Cir. 2006). If the ALJ s interpretation of the claimant s testimony is reasonable 13 and is supported by substantial evidence, it is not the court s role to second14 guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 15 An ALJ is not required to believe every allegation of disabling pain or other 16 non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) 17 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes 18 the existence of a medically determinable impairment that could reasonably give 19 rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as 20 to the credibility of the claimant s statements about the symptoms and their 21 functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the 22 record includes objective medical evidence that the claimant suffers from an 23 impairment that could reasonably produce the symptoms of which the claimant 24 complains, an adverse credibility finding must be based on clear and convincing 25 reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 26 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does 27 not apply is when there is affirmative evidence of malingering. Id. The ALJ s 28 credibility findings must be sufficiently specific to allow a reviewing court to 8 1 conclude the ALJ rejected the claimant s testimony on permissible grounds and 2 did not arbitrarily discredit the claimant s testimony. Moisa v. Barnhart, 367 3 F.3d 882, 885 (9th Cir. 2004). 4 To find the claimant not credible, an ALJ must rely either on reasons 5 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 6 contradictions in the testimony, or conflicts between the claimant s testimony and 7 the claimant s conduct (e.g., daily activities, work record, unexplained or 8 inadequately explained failure to seek treatment or to follow prescribed course of 9 treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 10 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant s 11 testimony solely because it is not substantiated affirmatively by objective medical 12 evidence, the lack of medical evidence is a factor that the ALJ can consider in his 13 credibility assessment. Burch, 400 F.3d at 681. 14 15 2. Analysis Plaintiff contends that the ALJ inadequately evaluated the credibility of her 16 subjective complaints. (Plaintiff s Motion at 7-9). The Court disagrees. 17 First, an ALJ may properly discredited a plaintiff s subjective complaints 18 due to inconsistencies with the plaintiff s daily activities. See Thomas v. 19 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between the 20 claimant s testimony and the claimant s conduct supported rejection of the 21 claimant s credibility); Verduzco v. Apfel,188 F.3d 1087, 1090 (9th Cir. 1999) 22 (inconsistencies between claimant s testimony and actions cited as a clear and 23 convincing reason for rejecting the claimant s testimony). Here, the ALJ noted 24 that in a March 4, 2004 Daily Activities Questionnaire, plaintiff stated that she 25 attends school on week days. (AR 31, 94). The ALJ also noted that although 26 plaintiff claimed that she was unable to sit for much more than an hour without 27 pain, in 2006 plaintiff flew to Mexico. (AR 30). 28 /// 9 1 Second, an ALJ may properly discredit plaintiff s subjective complaints 2 based on unexplained failure to seek treatment consistent with the alleged level of 3 severity. See Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc) (In 4 assessing credibility, the ALJ may properly rely on plaintiff s unexplained failure 5 to request treatment consistent with the alleged severity of her symptoms.); 6 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999); see Fair v. Bowen, 885 7 F.2d 597, 604 (9th Cir. 1989) (ALJ permissibly considered discrepancies between 8 the claimant s allegations of persistent and increasingly severe pain and the 9 nature and extent of treatment obtained). Here, the ALJ noted that there were 10 periods of time when plaintiff sought no treatment from a rheumatologist at all. 11 For example, although on February 8, 2006, plaintiff complained to Dr. Teophilov 12 that she had profound fatigue secondary to aggressive rheumatoid arthritis, the 13 ALJ notes that it appears that plaintiff stopped seeing Dr. Teophilov after that 14 visit. (AR 31, 579, 614). The ALJ also noted that from September 2003 to 15 December 2004 there is no evidence that plaintiff sought treatment from a 16 rheumatologist. (AR 30, 475, 511, 670). In addition, the ALJ reasonably 17 concluded that plaintiff s subjective symptoms were generally controlled with 18 medication, that plaintiff s physicians adequately addressed any side-effects from 19 plaintiff s medications, and that plaintiff sought no treatment other than 20 medication. (AR 31-33); cf. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 21 2008) (evidence that claimant responded favorably to conservative treatment 22 undermines plaintiff s reports of disabling pain). 23 Finally, an ALJ may discredit a plaintiff s subjective symptom testimony 24 due, in part, to the absence of supporting objective medical evidence. Burch, 400 25 F.3d at 681; Rollins, 261 F.3d at 857 ( While subjective pain testimony cannot be 26 rejected on the sole ground that it is not fully corroborated by objective medical 27 evidence, the medical evidence is still a relevant factor in determining the severity 28 of the claimant s pain and its disabling effects. ) (citing 20 C.F.R. 10 1 § 404.1529(c)(2)). Here, as discussed above, the ALJ reasonably determined that 2 plaintiff s symptoms were controlled with medication, that there were long periods 3 of time where at most plaintiff suffered only mild symptoms that did not require 4 treatment, and that any significant flare ups in plaintiff s condition were not so 5 lengthy as to prevent her from working. 6 Accordingly, plaintiff is not entitled to a reversal or remand on this basis. 7 V. CONCLUSION 8 For the foregoing reasons, the decision of the Commissioner of Social 9 Security is affirmed. 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 DATED: May 24, 2011 12 13 14 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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