Estela Garcia v. Michael J. Astrue, No. 2:2010cv07792 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of SocialSecurity is affirmed. See memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ESTELA GARCIA, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 10-7792 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On October 26, 2010, plaintiff Estela Garcia ( plaintiff ) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; November 1, 2010 Case Management Order, ¶ 5. /// 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 October 15, 2007, plaintiff filed an application for Disability Insurance 7 Benefits. (Administrative Record ( AR ) 8). Plaintiff asserted that she became 8 disabled on November 21, 2007, due to postpoliomyelitis syndrome. (AR 120). 9 The ALJ examined the medical record and heard testimony from plaintiff and a 10 vocational expert on September 3, 2009. (AR 24). 11 On September 28, 2009, the ALJ determined that plaintiff was not disabled 12 through the date of the decision. (AR 17). Specifically, the ALJ found: 13 (1) plaintiff suffered from the following severe impairments: history of 14 poliomyelitis with left lower extremity weakness, and depression (AR 10); 15 (2) plaintiff s impairments, considered singly or in combination, did not meet or 16 medically equal one of the listed impairments (AR 10); (3) plaintiff retained the 17 residual functional capacity to lift and carry 10 pounds frequently, stand or walk 18 two hours and sit six hours in an eight-hour workday with additional exertional 19 and nonexertional limitations (AR 10);2 (4) plaintiff could not perform her past 20 relevant work (AR 15); (5) there are jobs that exist in significant numbers in the 21 22 23 24 25 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 The ALJ determined that plaintiff (i) could lift and carry 10 pounds occasionally and 10 26 pounds frequently; (ii) could stand or walk two hours in an eight-hour workday, and sit six hours 27 in an eight-hour workday; (iii) could occasionally climb stairs, balance, stoop and crouch; (iv) could not kneel or crawl; (v) could handle and finger frequently but not repetitively with the 28 bilateral upper extremities; (vi) had less than moderate limitation in attention/concentration; and (vii) was limited to performing simple, repetitive tasks. (AR 10). 2 1 national economy that plaintiff could perform, specifically packager and assembler 2 (AR 16); and (6) plaintiff s allegations regarding her limitations were not credible 3 to the extent they were inconsistent with the ALJ s residual functional capacity 4 assessment (AR 15). 5 The Appeals Council denied plaintiff s application for review. (AR 1). 6 III. APPLICABLE LEGAL STANDARDS 7 A. 8 To qualify for disability benefits, a claimant must show that she is unable to Sequential Evaluation Process 9 engage in any substantial gainful activity by reason of a medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of at least twelve 12 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 13 § 423(d)(1)(A)). The impairment must render the claimant incapable of 14 performing the work she previously performed and incapable of performing any 15 other substantial gainful employment that exists in the national economy. Tackett 16 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 17 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 18 sequential evaluation process: 19 (1) 20 21 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 22 her ability to work? If not, the claimant is not disabled. If so, 23 proceed to step three. 24 (3) Does the claimant s impairment, or combination of 25 impairments, meet or equal an impairment listed in 20 C.F.R. 26 Part 404, Subpart P, Appendix 1? If so, the claimant is 27 disabled. If not, proceed to step four. 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform her past relevant work? If so, the claimant is not 3 disabled. If not, proceed to step five. 4 (5) Does the claimant s residual functional capacity, when 5 considered with the claimant s age, education, and work 6 experience, allow her to adjust to other work that exists in 7 significant numbers in the national economy? If so, the 8 claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 The claimant has the burden of proof at steps one through four, and the 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 14 (claimant carries initial burden of proving disability). 15 B. 16 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 17 benefits only if it is not supported by substantial evidence or if it is based on legal 18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 20 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion. Richardson v. Perales, 22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 25 To determine whether substantial evidence supports a finding, a court must 26 consider the record as a whole, weighing both evidence that supports and 27 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 28 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 4 1 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 2 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 3 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 IV. DISCUSSION 5 A. The ALJ Properly Considered the Opinions of the Agreed 6 Medical Examiner 7 1. 8 Pertinent Law The terms of art used in California workers compensation claims are not 9 equivalent to those used in Social Security disability cases. See Booth v. 10 Barnhart, 181 F. Supp. 2d 1099, 1104 (C.D. Cal. 2002) (citing Macri v. Chater, 93 11 F.3d 540, 544 (9th Cir. 1996); Desrosiers v. Secretary of Health & Human 12 Services, 846 F.2d 573, 576 (9th Cir. 1988)).3 Nonetheless, an ALJ may not 13 ignore a medical opinion merely because it was issued in a workers compensation 14 context. Booth, 181 F. Supp. 2d at 1106. Instead, the ALJ must evaluate the 15 objective medical findings in such opinions in the same manner as with any other 16 17 3 As observed by the Ninth Circuit: 18 19 20 21 22 Under the California workers compensation guidelines, a claimant incapable of performing heavy work may be capable of performing light, semi-sedentary, or sedentary work. None of these three categories, however, is based on strength. Rather, they turn on whether a claimant sits, stands, or walks for most of the day. Each entails a minimum of demands for physical effort. [citation omitted] 23 24 25 26 27 28 The categories of work under the Social Security disability scheme are measured quite differently. They are differentiated primarily by step increases in lifting capacities. Desrosiers, 846 F.2d at 576 (internal citation omitted); see also Glass v. Workers Compensation Appeals Board, 105 Cal. App. 3d 297, 302 (1980) n.1 (quoting and discussing the Schedule for Rating Permanent Disabilities Under Provisions of the Labor Code of the State of California ). 5 1 medical opinion evidence. Id. The ALJ s decision should reflect, however, that 2 the ALJ properly considered the pertinent distinctions between the two schemes: 3 While the ALJ s decision need not contain an explicit translation, it 4 should at least indicate that the ALJ recognized the differences 5 between the relevant state workers compensation terminology, on the 6 one hand, and the relevant Social Security disability terminology, on 7 the other hand, and took those differences into account in evaluating 8 the medical evidence. 9 Booth, 181 F. Supp. 2d at 1106; see, e.g., Desrosiers, 846 F.2d at 576 (finding 10 ALJ s interpretation of treating physician s opinion erroneous where record clear 11 that ALJ affirmatively failed to consider distinction between categories of work 12 under social security disability scheme versus workers compensation scheme). 13 14 2. Analysis Plaintiff contends that the ALJ did not properly consider the opinions 15 expressed in the June 25, 2009 report of an Agreed Medical/Psychiatric 16 Evaluation of plaintiff prepared by Dr. Mohan Nair, an agreed medical examiner 17 for plaintiff s workers compensation case. (Plaintiff s Motion at 3-6) (citing AR 18 208-53). More specifically, plaintiff argues that the ALJ failed properly to 19 account for the distinctions between the state workers compensation terminology 20 used in Dr. Nair s report and the relevant terminology applicable to plaintiff s 21 Social Security disability case, and therefore, in effect, improperly rejected Dr. 22 Nair s opinions without stating any reasons therefor. (Plaintiff s Motion at 5). 23 The Court disagrees. 24 Here, the administrative decision reflects that the ALJ was well aware of the 25 pertinent distinctions between the terms of art applicable to plaintiff s California 26 workers compensation claim and plaintiff s Social Security disability case. For 27 example, the ALJ specifically referred to Dr. Nair and Dr. Loren Green (a 28 psychologist who also examined plaintiff) as plaintiff s Worker s [sic] 6 1 Compensation doctors and noted that they each conducted a Worker s [sic] 2 Compensation evaluation of plaintiff. (AR 12-13). The ALJ noted that Dr. 3 Green found plaintiff to be temporarily totally psychologically disabled and that 4 Dr. Nair found plaintiff to be permanent and stationary both phrases relevant 5 only in California workers compensation cases. See, e.g., Iatridis v. Astrue, 501 6 F. Supp. 2d 1267, 1277 n.24 (C.D. Cal. 2007) (phrase temporarily totally 7 disabled part of California workers compensation terminology ); Viramontes v. 8 Astrue, 2010 WL 3212861, at 7 n.5 (E.D. Cal. Aug. 12, 2010) ( Permanent and 9 stationary is a term of art relevant to workers compensation law under California 10 law. ). The ALJ also noted that in Social Security cases the Commissioner is not 11 bound by the opinions of Workers Compensation doctors that a person is unable 12 to work for Workers Compensation purposes . . . . (AR 14). In addition, the 13 ALJ recognized that Dr. Nair had evaluated the level of plaintiff s mental 14 impairment with regard to the 8 work functions used to rate psychiatric 15 disabilities for California Workers Compensation. (AR 14-15). 16 The decision also reflects that the ALJ properly accounted for the pertinent 17 distinctions between the two statutory schemes. The ALJ discussed at length the 18 findings and opinions of Drs. Green and Nair and the weight the ALJ gave to each. 19 (AR 12-15). The ALJ then explained how the medical findings and opinions from 20 plaintiff s Workers Compensation doctors translated, for Social Security 21 purposes, into the criteria necessary for evaluating the severity of plaintiff s 22 mental impairments (20 C.F.R. § 404.1520a) and the ALJ s assessment that 23 plaintiff was limited to simple, repetitive tasks: 24 [T]he undersigned finds that the findings from the mental status 25 examinations and psychological testing, as discussed above, are 26 consistent with a mild restriction of activities of daily living; mild 27 difficulties in maintaining social functioning; moderate difficulties in 28 maintaining concentration, persistence or pace; and no episodes of 7 1 decompensation, each of extended duration. The undersigned 2 concludes that [plaintiff] has less than moderate limitation in 3 attention/concentration and a mental residual functional capacity for 4 simple, repetitive tasks. 5 (AR 15). 6 Accordingly, a remand or reversal on these grounds is not warranted. 7 B. 8 9 The ALJ s Findings at Step Three Were Free of Material Error 1. Pertinent Law At step three of the sequential evaluation process, the ALJ must determine 10 whether a claimant has an impairment or combination of impairments that meets 11 or equals a condition outlined in the listing. See 20 C.F.R. § 404.1520(d). An 12 impairment matches a listing if it meets all of the specified medical criteria. 13 Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Tackett, 180 F.3d at 1098. An 14 impairment that manifests only some of the criteria, no matter how severely, does 15 not qualify. Sullivan, 493 U.S. at 530; Tackett, 180 F.3d at 1099. An unlisted 16 impairment or combination of impairments is equivalent to a listed impairment if 17 medical findings equal in severity to all of the criteria for the one most similar 18 listed impairment are present.4 Sullivan, 493 U.S. at 531; see 20 C.F.R. 19 20 21 22 23 24 25 26 27 28 4 Under Social Security regulations, medical equivalence can be found in three ways: (1) If you have an impairment that is described in [the Listing of Impairments]. . . but [¶] . . . [y]ou do not exhibit one or more of the findings specified in the particular listing, or [¶] . . . [y]ou exhibit all of the findings, but one or more of the findings is not as severe as specified in the particular listing, [¶] . . . [w]e will find that your impairment is medically equivalent to that listing if you have other findings related to your impairment that are at least of equal medical significance to the required criteria. (2) If you have an impairment(s) that is not described in [the Listing of Impairments] . . ., we will compare your findings with those for closely analogous (continued...) 8 1 § 404.1526; SSR 83 19 (impairment is equivalent to a Listing only if claimant s 2 symptoms, signs, and laboratory findings are at least equivalent in severity to 3 the criteria for the listed impairment most like claimant s impairment). A 4 determination of medical equivalence must rest on objective medical evidence. 5 See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) ( [a] finding of equivalence 6 must be based on medical evidence only ) (citing 20 C.F.R. § 404.1529(d)(3)). 7 Although a claimant bears the burden of proving that she has an impairment 8 or combination of impairments that meets or equals the criteria of a listed 9 impairment, an ALJ must still adequately discuss and evaluate the evidence before 10 concluding that a claimant s impairments fail to meet or equal a listing. Marcia v. 11 Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) ( [I]n determining whether a claimant 12 equals a listing under step three . . . the ALJ must explain adequately his 13 evaluation of alternative tests and the combined effects of the impairments. ). 14 Remand is appropriate where an ALJ fails adequately to consider a listing that 15 plausibly applies to a plaintiff s case. See Lewis, 236 F.3d at 514 (plaintiff must 16 present plausible theory as to how an impairment or combination of impairments 17 equals a listed impairment). 18 In order to be considered presumptively disabled under Listing 1.02A, a 19 claimant must demonstrate that (1) she has major dysfunction of a major 20 21 22 23 24 25 26 27 4 (...continued) listed impairments. If the findings related to your impairment(s) are at least of equal medical significance to those of a listed impairment, we will find that your impairment(s) is medically equivalent to the analogous listing. (3) If you have a combination of impairments, no one of which meets a listing . . ., we will compare your findings with those for closely analogous listed impairments. If the findings related to your impairments are at least of equal medical significance to those of a listed impairment, we will find that your combination of impairments is medically equivalent to that listing. 28 20 C.F.R. § 404.1526(b). 9 1 peripheral weight-bearing joint (i.e., hip, knee, or ankle) characterized by gross 2 anatomical deformity and chronic joint pain and stiffness, with signs of limitation 3 of motion or other abnormal motion of the affected joint; (2) medical imaging 4 reflects narrowing, destruction, or ankylosis of the affected joint; and (3) the 5 dysfunction results in an inability to ambulate effectively, as defined in 6 1.00B2b. 5 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.02(A); see Hamilton v. 7 Astrue, 2010 WL 3748744, at *5 (C.D. Cal. Sep. 22, 2010). 8 9 2. Analysis Plaintiff contends that the ALJ failed properly to consider Listing 1.02A. 10 (Plaintiff s Motion at 6-9). More specifically, plaintiff argues that the ALJ erred 11 12 5 Listing 1.00B2b defines inability to ambulate effectively as follows: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (1) Definition. Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual s ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. (Listing 1.05C is an exception to this general definition because the individual has the use of only one upper extremity due to amputation of a hand.) (2) To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one s home without the use of assistive devices does not, in and of itself, constitute effective ambulation. 28 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.00(B)(2)(b). 10 1 at step three because the record contains evidence that plaintiff s history of 2 poliomyelitis resulted in an inability to ambulate effectively, which plaintiff 3 claims is equivalent to the criteria under Listing 1.02A. (Plaintiff s Motion at 8). 4 The Court disagrees. Even assuming that the ALJ failed to consider Listing 5 1.02A, reversal or remand in this case is not necessary since plaintiff fails to 6 present a plausible theory as to how her impairment equals such listing. 7 First, it does not appear that Listing 1.02A is sufficiently closely 8 analogous to plaintiff s history of poliomyelitis such that it would be useful for 9 determining equivalence in this case particularly since poliomyelitis is expressly 10 addressed elsewhere in the Listings. See 20 C.F.R. Part 404, Subpart P, Appendix 11 1, § 11.11 ( Anterior poliomyelitis ). 12 Second, even assuming, for the sake of argument, that plaintiff s history of 13 poliomyelitis is closely analogous to Listing 1.02A, and that the disorder caused 14 plaintiff s alleged inability to ambulate effectively, plaintiff still fails to present a 15 plausible theory of equivalence since plaintiff points to no objective medical 16 evidence in the record which demonstrates that findings related to her alleged 17 history of poliomyelitis are of equal medical significance to the other required 18 criteria under Listing 1.02A (i.e., major dysfunction of a major peripheral weight19 bearing joint characterized by gross anatomical deformity and chronic joint pain 20 and stiffness, with signs of limitation of motion or other abnormal motion of the 21 affected joint; medical imaging of narrowing, destruction, or ankylosis). 22 Finally, plaintiff presents no persuasive legal authority which supports her 23 suggestion that a claimant may be found presumptively disabled under the Listings 24 based solely on an alleged inability to ambulate effectively. (Plaintiff s Motion at 25 7) ( The Listings acknowledge that a medical condition that causes an inability to 26 ambulate effectively warrants disability. ). 27 Accordingly, a remand or reversal on these grounds is not warranted. 28 /// 11 1 V. CONCLUSION 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is affirmed. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 DATED: June 16, 2011 6 7 8 9 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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