Aureliano Retana v. Michael J. Astrue, No. 2:2010cv06044 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman: For the reasons set forth below, the final decision of the Commissioner is affirmed. (See document for details.) (rla)
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Aureliano Retana v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 AURELIANO RETANA, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-6044-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Aureliano 19 Commissioner s 20 Security Disability Insurance ( SSDI ) benefits. For the reasons set 21 forth below, the final decision of the Commissioner is affirmed. final Retana decision seeks denying judicial his review application of for the Social 22 23 I. Background 24 Plaintiff filed his application for SSDI benefits on November 29, 25 2007, alleging disability as of August 24, 2007 due to discogenic and 26 degenerative disorders of the back, a stomach injury, and nerve damage 27 to the left leg. (Administrative Record ( AR ) 9, 53, 92.) Plaintiff was 28 born on January 7, 1975 and was 34 years old at the time of the Dockets.Justia.com 1 administrative hearing. (AR 53, 103.) He completed high school and has 2 worked as a truck driver and security guard. (AR 14, 108, 113.) 3 Plaintiff s application was denied initially on April 3, 2008. (AR 57- 4 61.) An administrative hearing was held on October 15, 2009 before 5 Administrative 6 represented by counsel, testified, as did a vocational expert ( VE ). 7 (AR 19-52.) Law Judge ( ALJ ) Robert S. Eisman. Plaintiff, 8 On November 6, 2009, ALJ Eisman denied Plaintiff s application for 9 benefits. (AR 9-16.) The ALJ found that Plaintiff had not engaged in 10 substantial gainful activity since the alleged onset date. (AR 11.) The 11 ALJ further found that Plaintiff had the following severe impairments: 12 lumbar spine degenerative disc disease, lower left extremity quadracep 13 numbness with possible neuralgia paresthesia, diabetes mellitus II, 14 status post inguinal hernia repair in 2007 and abdominal hernia repair 15 in 2008, and obesity. (Id.) However, the ALJ determined that Plaintiff s 16 impairments did not meet and were not medically equal to, one of the 17 listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR 18 14.) 19 The ALJ also determined that Plaintiff retained the residual 20 functional capacity ( RFC ) to perform light work as defined in 20 21 C.F.R. 404.1567(b), in that he can exert up to 20 pounds of force 22 occasionally and/or up to 10 pounds of force frequently and/or a 23 negligible amount of force constantly to move objects .... The claimant 24 can perform work that does not require climbing ladders, ropes or 25 scaffolds, and no more than occasional climbing of ramps or stairs. He 26 can also perform work that requires no more than occasional balancing, 27 stooping, 28 occasionally operate foot controls with the left lower extremity. He can kneeling, crouching, or 2 crawling. The claimant can 1 perform work that does not involve concentrated exposure to extreme 2 vibration, hazardous machinery, unprotected heights, or other high risk, 3 hazardous or unsafe conditions. (AR 12.) The ALJ found that Plaintiff 4 was able to perform his past relevant work as a security guard. (AR 14.) 5 The ALJ also found, based upon the testimony of the VE, that Plaintiff 6 was capable of performing various jobs that exist in significant numbers 7 in the national economy. (AR 15.) Therefore, the ALJ concluded that 8 Plaintiff was not disabled within the meaning of the Social Security 9 Act. 20 C.F.R. § 416.920(f). (Id.) 10 On July 22, 2010, the Appeals Council denied review (AR at 1-3), 11 and Plaintiff timely commenced this action for judicial review. On 12 February 17, 2011, the parties filed a Joint Stipulation ( Joint Stip. ) 13 of disputed facts and issues, in which Plaintiff claims that the ALJ 14 failed to make proper credibility findings and to consider Plaintiff s 15 subjective symptoms. (Joint Stip. 2.) Plaintiff asks the Court to 16 reverse and order an award of benefits, or in the alternative, remand 17 for further proceedings. (Joint Stip. 13-14.) The Commissioner requests 18 that the ALJ s decision be affirmed. (Joint Stip. 14-15.) 19 20 21 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 22 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 23 decision must be upheld unless the ALJ s findings are based on legal 24 error or are not supported by substantial evidence in the record as a 25 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. 26 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 27 such evidence as a reasonable person might accept as adequate to support 28 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 3 1 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 2 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 3 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 4 evidence supports a finding, the reviewing court must review the 5 administrative record as a whole, weighing both the evidence that 6 supports 7 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 8 the 9 conclusion, the reviewing court may not substitute its judgment for 10 and evidence the can evidence support that detracts either from affirming the Commissioner s or reversing the ALJ s that of the ALJ. Robbins, 466 F.3d at 882. 11 12 III. The ALJ Properly Assessed Plaintiff s Credibility 13 Plaintiff contends that the ALJ erred by failing to provide clear 14 and convincing reasons for discrediting his testimony regarding his 15 subjective symptoms. (Joint Stip. 3.) The ALJ found that Plaintiff was 16 not fully credible for the following reasons: (1) the objective medical 17 evidence did not support impairments likely to produce disabling pain or 18 limitation and (2) Plaintiff s self-reported ability to perform certain 19 activities of daily living was at odds with the alleged severity of his 20 impairment. (AR 13-14.) 21 When deciding whether to accept the testimony of a claimant, the 22 ALJ must perform a two-step analysis. At the first step, the claimant 23 must produce objective medical evidence of one or more impairments, and 24 show that the impairment or combination of impairments could reasonably 25 be expected to produce some degree of symptom. Smolen v. Chater, 80 F.3d 26 1273, 1281-1282 (9th Cir. 1996) (citing Cotton v. Bowen, 799 F.2d 1403 27 (9th Cir. 1986)). The claimant is not required to produce objective 28 medical evidence of the symptom itself or the severity of the symptom. 4 1 Smolen, 80 F.3d at 1282 (citing Bunnell, 947 F.2d at 347-348). At the 2 second step of the analysis, the ALJ must assess the credibility of the 3 claimant s testimony regarding the severity of his symptoms. If there is 4 no 5 claimant s testimony only if the ALJ makes specific findings giving 6 clear 7 testimony is not credible and what facts in the record lead to that 8 conclusion. Id. at 1284 (citing Dodrill v. Shalala, 12 F.3d 915, 918 9 (9th Cir. 1993)). 10 affirmative and The evidence convincing ALJ gave of malingering, reasons specific for the reasons the ALJ rejection, for finding may reject including that the which Plaintiff s 11 subjective testimony was not entirely credible, each of which is fully 12 supported by the record. First, the ALJ noted that the objective medical 13 evidence did not support Plaintiff s allegations of disabling symptoms. 14 (AR 13.) Plaintiff alleged disabling pain in his left thigh and back. As 15 the ALJ noted, although an MRI of Plaintiff s lumbar spine taken in 16 October 2007 showed some degenerative disc dessication, a subsequent EMG 17 and Nerve Conduction Study performed on November 19, 2007 was normal. 18 (AR 13, 212.) In addition, an x-ray of the lumbar spine and a lumbar MRI 19 performed on April 14, 2009 showed no disc bulges, spinal canal stenosis 20 or neural foraminimal narrowing, while an x-ray of the left knee was 21 normal with no evidence of fracture or dislocation. (AR 13-14, 370-371, 22 376.) Thus, it was proper for the ALJ to note that the alleged symptoms 23 were disproportionate to the clinical and diagnostic findings. See 24 Rollins 25 subjective pain testimony cannot be rejected on the sole ground that it 26 is not fully corroborated by objective medical evidence, the medical 27 evidence is still a relevant factor in determining the severity of the 28 claimant s pain and its disabling effects. ) (citing 20 C.F.R. § v. Massanari, 261 F.3d 853, 5 857 (9th Cir. 2001) ( While 1 404.1529(c)(2)). 2 In finding that the medical evidence did not support Plaintiff s 3 claims of disabling pain, the ALJ properly relied upon the opinion of 4 the consultative examining physician, Rocely Tomayo, M.D., who found 5 that Plaintiff had a normal gait, full range of motion in the lumbar 6 spine, neck and upper and lower extremities without pain, negative 7 straight-leg raising, and no deformities, tenderness or spasm in the 8 spine. 9 neurological findings and motor strength were normal and he had no 10 muscle atrophy. (AR 278-279.) Dr. Tomayo opined that Plaintiff could 11 lift or carry 50 pounds occasionally and 25 pounds frequently, as well 12 as stand or walk for six hours in an eight-hour work day. (AR 16, 279.) 13 The ALJ also properly relied upon the opinion of the state agency 14 physician who, based on a review of the medical evidence, agreed with 15 Dr. Tomayo that Plaintiff could perform a full range of medium work. (AR 16 13, 282-286.) The ALJ properly determined that Plaintiff was not fully 17 credible because his testimony was inconsistent with the evidence in the 18 record. See Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 19 (claimant 20 inconsistent with his own statements or actions, as well as with the 21 medical evidence ). 22 (AR 13, 275-279.) properly Dr. discredited Tomayo where also his noted that hearing Plaintiff s testimony was The ALJ also appropriately determined that Plaintiff s ability to 23 perform certain activities of daily living were at odds with his claim 24 of debilitating pain. The ALJ observed that Plaintiff could walk one mile 25 three times a week, perform stretching exercises, play with his son, care 26 for his two pit bull dogs, perform light housecleaning, do laundry, and 27 drive a few miles. (AR 14, 32-34.) Plaintiff also reported to Dr. Tomayo, 28 the examining consultative physician, that he was able to clean his 6 1 apartment, cook, shop and drive his children to and from school. (AR 14, 2 276.) While it is true that one does not need to be utterly 3 incapacitated in order to be disabled, Vertigan v. Halter, 260 F.3d 4 1044, 1050 (9th Cir. 2001), the extent of Plaintiff s activity, along 5 with the other evidence, supports the ALJ s finding that Plaintiff s 6 reports of his impairment were not fully credible. See Bray v. Comm r of 7 Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Curry v. Sullivan, 8 925 F.2d 1127, 1130 (9th Cir. 1990) (finding that the claimant s ability 9 to take care of her personal needs, prepare easy meals, do light 10 housework and shop for some groceries ... may be seen as inconsistent 11 with the presence of a condition which would preclude all work activity ) 12 (citing Fair, 885 F.2d at 604). 13 Here, the ALJ made specific findings articulating clear and 14 convincing reasons for his rejection of Plaintiff s subjective testimony. 15 Smolen, 80 F.3d at 1284. It is the responsibility of the ALJ to determine 16 credibility and resolve conflicts or ambiguities in the evidence. 17 Magallanes v. Brown, 881 F.2d 747, 750 (9th Cir. 1989). A reviewing court 18 may not second-guess the ALJ s credibility determination when it is 19 supported by substantial evidence in the record, as here. See Fair, 885 20 F.2d at 604. Where there is a lack of objective medical evidence, 21 combined with other evidence in the record, such as an ability to perform 22 routine daily 23 credibility activities, finding is as is the supported by case here, an substantial ALJ s adverse evidence. See 24 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008); Rollins, 25 261 F.3d at 857. 26 // 27 // 28 // 7 1 IV. Conclusion 2 For the reasons stated above, the decision of the Social Security 3 Commissioner is hereby AFFIRMED. 4 5 DATED: February 24, 2011 6 7 8 ______________________________ Marc L. Goldman United States Magistrate Judge 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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