Avelina M. Robles Martinez v. Michal J. Astrue, No. 2:2010cv07583 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 AVELINA M. ROBLES MARTINEZ, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 10-07583 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Avelina Robles Martinez contends that the Social Security 18 Commissioner wrongly denied her claim for disability benefits. Plaintiff argues that the 19 Administrative Law Judge ( ALJ ) improperly evaluated her credibility and her treating 20 physicians opinions. The Court agrees in part, as explained below. 21 Plaintiff first argues that the ALJ s credibility assessment was erroneous. An 22 ALJ need not accept a claimant s statements as to subjective pain or symptoms, but can 23 reject them for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 834 (1996). 24 Plaintiff asserts that the reasons cited by the ALJ were not legitimate. 25 The ALJ first stated that the objective medical evidence did not fully support 26 Plaintiff s complaints. (AR 17.) An ALJ is permitted to consider whether a lack of 27 medical evidence supports a claimant s testimony, but this reason cannot form the sole 28 basis for discounting the claimant s credibility. See Burch v. Barnhart, 400 F.3d 676, 681 1 (9th Cir. 2005). The Court need not address whether this reason is legitimate because the 2 ALJ provided no other valid reason for discounting Plaintiff s credibility in this case. 3 The ALJ also asserted that Plaintiff s daily activities were inconsistent with 4 her alleged limitations. The ALJ stated that Plaintiff s daily activities included driving, 5 lifting up to twenty pounds, shopping, dusting, vacuuming, washing dishes, cleaning 6 mirrors, and doing yard work. (AR 18.) The ALJ failed to mention, however, the 7 difficulties and limitations Plaintiff experiences in performing these tasks. 8 Thus, Plaintiff testified that she could drive only five or ten miles [b]ecause 9 of the pain, and that it was very painful for her to twist her neck when changing lanes. 10 (AR 28, 37.) She also explained that pain in her wrists and hands makes it difficult for her 11 to write, drive, lift, and hold, grasp or pinch objects. (AR 33.) For example, she explained 12 that she could vacuum for only five to ten minutes because grasping the vacuum cleaner 13 . . . causes very much pain in her hand, thumb and wrist. (AR 47.) Plaintiff also 14 explained that she always takes her husband shopping with her so he can carry the 15 groceries. (AR 48.) In addition, Plaintiff clarified that the only yard work she performed 16 was watering plants. (AR 46-47.) Plaintiff s Daily Activities Questionnaire, which the 17 ALJ cited, further detailed the difficulties she experiences in performing her daily 18 activities. Plaintiff wrote, for example, that she has constant pain in both hands ; she 19 cannot handle much activity because she get[s] tired [and] [has] to manage pain in [her] 20 hands, neck [and] shoulder ; her hands hurt a lot when she combs her hair; she 21 experiences pain when lifting, gripping, grasping or twisting objects; numbness in her 22 hands causes her to drop things; she can lift only small items ; and she experiences pain 23 in her hands when watering plants or sweeping. (AR 162-65.) In sum, Plaintiff s daily 24 activities do not contradict her allegations or demonstrate an ability to perform substantial 25 gainful activity. This reason therefore does not clearly and convincingly detract from her 26 credibility. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); Reddick v. Chater, 157 27 F.3d 715, 722 (9th Cir. 1998). 28 -2- 1 The final reason the ALJ provided for discounting Plaintiff s credibility was 2 that Plaintiff s course of treatment has been quite conservative. The ALJ stated that 3 Plaintiff admit[ted] that she only uses Tylenol or ibuprofen . . . for pain and admit[ted] 4 that she no longer uses wrist braces or any other assistive devices. (AR 18.) The ALJ did 5 not mention Plaintiff s testimony that the ibuprofen she takes is at prescription-strength, 6 and that she is bothered by its side effects. (AR 44.) Nor did the ALJ mention that 7 Plaintiff wears compression bandages on both wrists and performs various exercises to 8 alleviate pain in her wrists, hands, and neck. (AR 32-35, 37.) Moreover, the ALJ did not 9 explain what additional treatments Plaintiff could undergo to alleviate her pain.1 Plaintiff 10 has already undergone carpal tunnel release surgeries on both wrists (AR 352), and 11 Plaintiff testified that two physicians told her there was nothing more they could do for her 12 hands. (AR 43; see AR 380-81.) Accordingly, even if Plaintiff s course of treatment could 13 be characterized as conservative, it does not clearly and convincingly detract from her 14 credibility because she had valid reasons for not undergoing more aggressive treatment. 15 See Carmickle v. Comm r, 533 F.3d 1155, 1162 (9th Cir. 2008). 16 Plaintiff also challenges the ALJ s evaluation of the opinions of two of her 17 treating physicians, Drs. Larsen and Masserman, who evaluated her as part of her workers 18 compensation claim. The Court finds no error here. Dr. Larsen opined that, for her spine, 19 Plaintiff should avoid heavy lifting, repetitive motion of the neck, and keeping her head in 20 one fixed position for a prolonged period of time. With respect to her wrists, Plaintiff lost 21 between 25 and 50 percent of her pre-injury capacity for lifting, pushing, pulling, 22 grasping, pinching, holding, torquing, and performing other activities in comparable 23 physical effort, as well as activities requiring finger dexterity. (AR 353.) Dr. Masserman 24 opined that Plaintiff was incapable of prolonged sitting in one position, prolonged typing, 25 26 27 28 1 To the extent the ALJ had in mind Plaintiff s decision not to undergo neck surgery, Plaintiff explained that she did not want to take a chance with additional surgery after the carpal tunnel surgeries were unsuccessful. (AR 39; see AR 352.) Moreover, Plaintiff s decision to put off neck surgery does not undermine the significant complaints she has about her hands and wrists. -3- 1 or rapid or vigorous neck movements. (AR 479.) The ALJ stated that he gave 2 considerable weight to Dr. Larsen s opinion and substantial weight to Dr. 3 Masserman s. (AR 18.) Indeed, the ALJ s residual functional capacity assessment 4 reasonably accommodated their opinions: Plaintiff was restricted to light work; could only 5 occasionally handle and finger objects (i.e., gross and fine manipulation); could sit for only 6 two hours per eight-hour workday, and needed to stand and stretch for several minutes 7 after sitting for one hour; and could not perform repeated, vigorous, or rapid neck rotation, 8 flexion or extension. 9 Drs. Larsen s and Masserman s opinions. (AR 16.) Accordingly, the ALJ did not err in evaluating 10 Finally, Plaintiff contends the ALJ erred in evaluating the opinion of another 11 treating physician, Dr. Sullivan. Dr. Sullivan completed a residual functional capacity 12 questionnaire and opined that Plaintiff could occasionally lift weights of ten pounds or less 13 and never lift heavier weights, and that Plaintiff could not use her hands, fingers or arms 14 to perform any grasping, turning, twisting, fine manipulating, or reaching. (AR 383-89.) 15 The ALJ rejected this opinion, finding that Plaintiff s limitations were not so extreme. The 16 ALJ explained that he rejected Dr. Sullivan s opinion based on the medical evidence and 17 observations of [Plaintiff] at the hearing, and an absence of sufficient clinical data in 18 Dr. Sullivan s own treatment records to support such a conclusion. (AR 19.) These 19 reasons are supported by substantial evidence and constitute specific and legitimate reasons 20 for rejecting Dr. Sullivan s opinion. Notably, aside from a single office visit in which 21 Plaintiff relayed her problems stemming from carpal tunnel syndrome (AR 380-81), the 22 records from Dr. Sullivan s group do not mention any significant problems with Plaintiff s 23 hands, arms, or neck. (AR 250-341, 481-90.) Accordingly, the ALJ did not err in 24 evaluating Dr. Sullivan s opinion. See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 25 2003) (holding that an ALJ may reject a physician s opinion that is not supported by his 26 own treatment notes ). 27 /// 28 /// -4- 1 In accordance with the foregoing, the decision of the Commissioner is 2 reversed. The matter is remanded to the Commissioner, who shall reassess Plaintiff s 3 credibility and otherwise proceed as appropriate. 4 IT IS SO ORDERED. 5 6 DATED: November 28, 2011 7 8 9 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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