David S. Rerkphuritat v. Michael J. Astrue, No. 2:2010cv08007 - Document 15 (C.D. Cal. 2011)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 DAVID S. RERKPHURITAT, 13 Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) No. CV 10-8007-CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability insurance benefits. 22 For the reasons stated below, the Magistrate Judge finds that judgment 23 should be granted in favor of Defendant, affirming the Commissioner s 24 decision. 25 26 I. Plaintiff seeks BACKGROUND Plaintiff David S. Rerkphuritat was born on July 1, 1955, and was 27 fifty-four years old at the time of his administrative hearing. 28 [Administrative Record ( AR ) 79-80.] 1 He has at least a high school 1 education and past work experience as a dialysis technician. [AR 18- 2 19.] 3 4 Plaintiff alleges disability due to back, shoulder and neck pain. [AR 115.] 5 6 II. PROCEEDINGS IN THIS COURT On September 8, 2011, the parties filed their Joint Stipulation 7 ( JS ) identifying matters not in dispute, issues in dispute, the 8 positions of the parties, and the relief sought by each party. 9 matter has been taken under submission without oral argument. III. 10 11 This PRIOR ADMINISTRATIVE PROCEEDINGS On October 24, 2007, Plaintiff filed an application for a period 12 of disability and disability insurance benefits alleging disability 13 beginning August 24, 2006. 14 denied initially and upon reconsideration, Plaintiff requested an 15 administrative hearing, which was held on August 29, 2009, before 16 Administrative Law Judge ( ALJ ) Joel B. Martinez. 17 Plaintiff appeared with counsel, and testimony was taken from 18 Plaintiff and vocational expert ( VE ) Rita Barron-King. 19 The ALJ denied benefits in an administrative decision dated October 20 15, 2009. 21 August 20, 2010, the ALJ s decision became the Commissioner s final 22 decision. 23 24 [AR 12-19.] [AR 1-3.] [AR 12, 81.] After the application was [AR 20.] [AR 20.] When the Appeals Council denied review on This action followed. IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. 26 ALJ s) findings and decision should be upheld if they are free of 27 legal error and supported by substantial evidence. 28 court determines that a finding is based on legal error or is not 2 The Commissioner s (or However, if the 1 supported by substantial evidence in the record, the court may reject 2 the finding and set aside the decision to deny benefits. 3 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 4 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 5 F.3d 1157, 1162 (9th Cir. 6 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 7 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 8 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 9 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 10 preponderance. Reddick, 157 F.3d at 720. 11 which a reasonable person might accept as adequate to support a 12 conclusion. 13 a finding, a court must review the administrative record as a whole, 14 weighing both the evidence that supports and the evidence that 15 detracts from the Commissioner s conclusion. 16 can reasonably support either affirming or reversing, the reviewing 17 court may not substitute its judgment for that of the Commissioner. 18 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports 19 V. Id. If the evidence DISCUSSION 20 A. THE FIVE-STEP EVALUATION 21 To be eligible for disability benefits a claimant must 22 demonstrate a medically determinable impairment which prevents the 23 claimant from engaging in substantial gainful activity and which is 24 expected to result in death or to last for a continuous period of at 25 least twelve months. 26 721; 42 U.S.C. § 423(d)(1)(A). 27 \ \ \ 28 \ \ \ Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 3 1 Disability claims are evaluated using a five-step test: 2 Step one: Is the claimant engaging in substantial 3 gainful activity? 4 disabled. 5 If so, the claimant is found not If not, proceed to step two. Step two: Does the claimant have a severe impairment? 6 If so, proceed to step three. 7 disabled is appropriate. If not, then a finding of not 8 Step three: Does the claimant s impairment or 9 combination of impairments meet or equal an impairment 10 listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? 11 so, the claimant is automatically determined disabled. 12 not, proceed to step four. 13 If If Step four: Is the claimant capable of performing his 14 past work? 15 proceed to step five. 16 If so, the claimant is not disabled. If not, Step five: Does the claimant have the residual 17 functional capacity to perform any other work? 18 claimant is not disabled. If so, the If not, the claimant is disabled. 19 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 20 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 21 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 22 C.F.R. § 404.1520, § 416.920. 23 not disabled at any step, there is no need to complete further 24 steps. 25 If a claimant is found disabled or Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. Claimants have the burden of proof at steps one through four, 26 subject to the presumption that Social Security hearings are non- 27 adversarial, and to the Commissioner s affirmative duty to assist 28 claimants in fully developing the record even if they are represented 4 1 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 2 1288. 3 made, and the burden shifts to the Commissioner (at step five) to 4 prove that, considering residual functional capacity ( RFC )1, age, 5 education, and work experience, a claimant can perform other work 6 which is available in significant numbers. 7 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. If this burden is met, a prima facie case of disability is Tackett, 180 F.3d at 1098, 8 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 9 Here, the ALJ found Plaintiff had not engaged in substantial 10 gainful activity since August 24, 2006, the alleged onset date (step 11 one); that Plaintiff had a severe impairment, namely chronic 12 impingement syndrome, right shoulder, with right shoulder 13 osteoarthritis of the AC joint; degenerative disk disease, lumbosacral 14 spine, with left radiculopathy; and degenerative disk disease, 15 cervical spine, mild, with no radiculopathy (step two); and that 16 Plaintiff did not have an impairment or combination of impairments 17 that met or equaled a listing (step three). [AR 14-15.] 18 found that Plaintiff had the RFC to perform light work with occasional 19 postural limitations, a preclusion from engaging in reaching overhead 20 with the right upper extremity, a limitation to frequent right hand 21 manipulation, and a requirement to avoid hazardous heights and 22 hazards. [AR 15.] He found that Plaintiff is capable of perform his The ALJ 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 past relevant work as a dialysis technician as actually and generally 2 performed (step four) and, thus, is not disabled as defined by the 3 Act. 4 considering his age, education, work experience, RFC and work skills 5 acquired from past relevant work, could perform other work existing in 6 significant numbers in the national economy (step five). [AR 19.] 7 Accordingly, Plaintiff was found not disabled as defined by the 8 Social Security Act. [AR 19.] 9 C. 10 11 [AR 18.] ISSUES IN DISPUTE The Joint Stipulation identifies as disputed issues whether the ALJ properly considered: 12 1. 13 Plaintiff s ability to perform his past relevant work or other work; and 14 15 In the alternative, the ALJ also found that Plaintiff, 2. Plaintiff s testimony concerning his subjective symptoms. [Joint Stipulation JS 4.] 16 D. 17 At Plaintiff s administrative hearing, the VE testified that an ISSUE ONE: PLAINTIFF S ABILITY TO PERFORM WORK 18 individual of Plaintiff s age, education, work experience and RFC, as 19 set forth above and specifically noting the limitations to frequent 20 handling with the non-dominant right hand and no overhead reaching 21 with the right upper extremity, could perform Plaintiff s past 22 relevant work as a dialysis technician as generally performed. [AR 32, 23 42.] Next, she testified that such an individual had transferable 24 skills and would be able to perform the job of phlebotomist. [AR 43.] 25 Based on the testimony of the VE and information contained in the 26 Dictionary of Occupational Titles ( DOT ), the ALJ found Plaintiff 27 could perform his past relevant work as actually and generally 28 \ \ \ 6 1 performed. [AR 18.] Alternatively, he found Plaintiff could perform 2 other work in the national economy, such as phlebotomist. [AR 19.] 3 Plaintiff contends the ALJ improperly found he could perform (1) 4 his past relevant work of dialysis technician as actually performed, 5 (2) his past relevant work of dialysis technician as generally 6 performed, and (3) other work, such as phlebotomist. [JS 4-15.] 7 Specifically, he contends that the DOT indicates that the jobs of 8 dialysis technician and phlebotomist both require frequent use of both 9 upper extremities to reach and, thus, his limitation to no overhead 10 reaching with his right upper extremity precludes him from performing 11 these jobs as they are described in the DOT. [JS 7-15.]2 12 As conceded by the Commissioner, the ALJ erred in finding 13 Plaintiff could perform his past relevant work of dialysis technician 14 as actually performed. [JS 15.] However, as shown below, the error was 15 harmless because the ALJ properly found that Plaintiff could perform 16 his past relevant work as generally performed and could perform other 17 work in the national economy, such as the job of phlebotomist. 18 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (while the 19 ALJ erred at step 4 by finding claimant could perform past relevant 20 work, the error was harmless because the ALJ properly decided 21 alternatively at step 5 that claimant could perform other work in the 22 national economy). 23 to reversal. 24 2005)( A decision of the ALJ will not be reversed for errors that are Accordingly, this error does not entitle Plaintiff See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 25 2 26 27 28 Plaintiff also contends that his limitation to occasional postural activities precludes him from performing his past work of dialysis technician as actually performed. Because the Commissioner concedes that the ALJ erred in finding Plaintiff could perform his past work as actually performed, the court need not address this issue. [JS 15.] 7 1 2 harmless ). An ALJ may rely on the DOT to determine whether a claimant is 3 capable of performing work. 20 C.F.R. § 404.1566(d)(1). The ALJ may 4 also rely on the testimony of a vocational expert. 5 Barnhart, 427 F.3d 1211, 1217-1218 (9th Cir. 2005) (ALJ may rely on VE 6 testimony which considered all claimant s limitations); Johnson v. 7 Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (ALJ may take 8 administrative notice of information provided by VE). 9 ALJ may accept VE testimony that contradicts the DOT only if he Bayliss v. However, the 10 obtains from the VE a reasonable explanation for any apparent conflict 11 and the record contains persuasive evidence to support the 12 contradiction. 13 2008); Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007); 14 Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 2001). 15 Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. There is no such conflict here. Although the DOT states that the 16 job of dialysis technician is light work and requires frequent 17 reaching, handling and fingering, DOT 078.362-014, and that the job of 18 phlebotomist is light work requiring frequent reaching, handling and 19 fingering, DOT 079.364-022, it does not require the ability to reach 20 frequently with both hands. 21 at *7 (C.D. Cal. 2010)(rejecting argument that DOT expressly requires 22 performance of reaching, handling, and fingering with both hands); 23 Fuller v. Astrue, 2009 WL 4980273 at *2-3 (C.D. Cal. 2009)(same). 24 Plaintiff is left-handed and has no limitations on the use of his 25 dominant left upper extremity and, thus, is capable of frequent 26 reaching, handling and fingering. 27 an individual with Plaintiff s limitations to his right upper 28 extremity and unlimited ability to use his left hand could perform See McConnell v. Astrue, 2010 WL 1946728 [AR 32.] 8 The VE s testimony that 1 these jobs which require frequent reaching, handling and fingering 2 confirmed this. [AR 42-43.] 3 the DOT and the VE s testimony that Plaintiff could perform the jobs 4 of dialysis technician and phlebotomist, and the ALJ could properly 5 rely on her testimony.3 Accordingly, there is no conflict between 6 Plaintiff cites to the Seventh Circuit case, Prochaska v. 7 Barnhart, 454 F.3d 731 (7th Cir. 2006), to support his argument that 8 Plaintiff s preclusion from overhead reaching is inconsistent with a 9 job description in the DOT which required frequent reaching. [JS 13.] 10 The facts in Prochaska are distinguishable from the facts here. 11 There, the claimant was limited to occasional reaching above shoulder 12 level. 13 Id. 14 limited to no overhead reaching. [AR 15.] 15 limitation to his dominant left upper extremity. [AR 15.] The holding 16 of Prochaska is thus not apposite here. The Fifth Circuit case of 17 Carey v. Apfel, 230 F.3d 131 (5th Cir.2000), provides a more apt 18 analogy. In Carey, the ALJ relied on the testimony of a VE in finding 19 that the plaintiff, whose left arm had been amputated, could perform 20 work as a cashier or ticket seller. On appeal, the plaintiff argued 21 the VE testimony was inconsistent with the DOT because both jobs 22 required dexterity and frequent handling and fingering with two hands, 23 whereas the plaintiff had only one hand. Id. at 146. In rejecting this Id. at 736. This limitation concerned both upper extremities. Here, only Plaintiff s non-dominant right upper extremity is He has no reaching or other 24 3 25 26 27 28 The DOT states that the jobs of dialysis technician and phlebotomist require only occasional postural activities. DOT 078.362-014 (dialysis technician requires occasional stooping and kneeling), 079.364-022 (phlebotomist requires occasional stooping). The VE s testimony that an individual limited to occasional postural activities could perform these jobs does not contradict the DOT. To the extent that Plaintiff contends otherwise, his contention is without merit. 9 1 argument, the Fifth Circuit noted there was no conflict between the VE 2 testimony and the DOT because the DOT did not state the jobs required 3 the use of both hands. Id. 4 here. 5 This reasoning is equally applicable Accordingly, because the VE s testimony was not inconsistent with 6 the DOT, the ALJ properly relied on that testimony to find Plaintiff 7 could perform his past work of dialysis technician as generally 8 performed and other work of phlebotomist. 9 to reversal. 10 E. 11 Plaintiff contends that the ALJ erred in rejecting his subjective 12 13 Plaintiff is not entitled ISSUE TWO: CREDIBILITY FINDING symptom testimony. At his administrative hearing, Plaintiff testified that his 14 impairments limited him to 15 minutes of walking, 15 minutes of 15 standing and 20 minutes of sitting. [AR 31-32.] He also testified that 16 he can walk without a cane so long as he is careful, but that he had 17 been using a cane for balance for about a year. [AR 31.] 18 The ALJ found that Plaintiff s impairments could reasonably be 19 expected to cause his symptoms but rejected them to the extent they 20 are inconsistent with his RFC findings. [AR 17.] In so doing, the ALJ 21 found, first, that Plaintiff made statements that were inconsistent 22 and unsupported by the record. 23 that he needed a cane for the specific reason that it was not 24 supported by medical evidence. 25 description of his limitations in sitting, standing, and walking both 26 as inconsistent with an even more restrictive physician s opinion 27 (whose opinion was rejected by the ALJ for reasons that Plaintiff does 28 not challenge here) and as inconsistent with his activities; He also rejected Plaintiff s testimony Finally, he rejected Plaintiff s 10 1 specifically, with his ability to go on a three-week trip to 2 Thailand, which requires long hours of air travel, and would 3 contradict [Plaintiff s] subjective complaints. [AR 17-18.] 4 Once a claimant produces objective medical evidence of an 5 underlying impairment which could reasonably be expected to produce 6 the pain or other symptoms alleged, the ALJ may not reject his or her 7 subjective complaints based solely on lack of objective medical 8 evidence to fully corroborate the alleged severity of the symptom. 9 Bunnell v. Sullivan, 947 F.2d 341, 344-45 (9th Cir. 1991). The ALJ 10 may reject the claimant s testimony regarding the severity of his or 11 her symptoms only if he or she makes specific findings stating clear 12 and convincing reasons for doing so. 13 1028, 1035-36 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1281-82 14 (9th Cir.1996). 15 reviewing court may conclude that the ALJ did not arbitrarily 16 discredit [the claimant s] testimony. 17 F.3d 1035, 1039 (9th Cir. 2008)(quoting Thomas v. Barnhart, 278 F.3d 18 947, 958 (9th Cir. 2002)). 19 Lingenfelter v. Astrue, 504 F.3d The findings must be sufficiently specific that a Tommasetti v. Astrue, 533 In assessing the credibility of a claimant, the ALJ may use 20 ordinary techniques of credibility evaluation, and may consider 21 factors such as a (1) lack of medical support for the degree of 22 disability alleged, and (2) statements made by the claimant which are 23 inconsistent with the record. 24 1148 (9th Cir. 2001); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 25 2005). 26 Tonapetyan v. Halter, 242 F.3d 1144, Here, the ALJ offered multiple legally sufficient reasons for 27 declining to credit plaintiff s subjective symptom statements to the 28 extent they contradicted the RFC finding. 11 First, the ALJ properly found that Plaintiff s allegation to the 1 2 Administration of a disabling neck impairment was unsupported by his 3 medical records. Specifically, Plaintiff initially claimed he was 4 unable to work due to neck, back and shoulder pain. [AR 115.] The ALJ 5 found, however, that the medical record did not support a finding of 6 disabling back pain and noted, moreover, that neither orthopedic 7 examiner significantly addressed a medical condition involving the 8 neck. 9 which does not reflect complaints of or treatment for neck pain to any These findings are amply supported by the record as a whole, [E.g., AR 227, 305-26.] An ALJ may properly consider 10 notable degree. 11 a plaintiff s overall veracity, including indications that he has 12 inconsistently reported his alleged impairments, in gauging the 13 credibility of specific symptom testimony. 14 F.3d 1144, 1147-48 (9th Cir. 2001). 15 533 F.3d 1035, 1040 (9th Cir. 2008)(holding that ALJ properly 16 discounted plaintiff s credibility where plaintiff was a vague 17 witness with respect to the alleged period of disability and pain 18 symptoms); Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) 19 (finding ALJ s credibility finding properly rejected plaintiff s 20 credibility when she did not self-report to physicians about the 21 extent or nature of fatigue as alleged before the Commissioner, and x- 22 rays and other tests were normal and did not support claims of back 23 and neck pain). Tonapetyan v. Halter, 242 See also Tommasetti v. Astrue, 24 Second, the ALJ properly noted and considered lack of support in 25 the record for Plaintiff s purported need to walk with a cane. [AR 17 26 (citing AR 230 ( Gait is normal ), 324 (Plaintiff does not need cane 27 or other assistive device to engage in occasional standing or 28 walking)).] See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) 12 1 ( Although lack of medical evidence cannot form the sole basis for 2 discounting pain testimony, it is a factor that the ALJ can consider 3 in his credibility analysis ). 4 Third, the ALJ properly noted and considered that Plaintiff s 5 testimony regarding limitations in his abilities to sit, stand, and 6 walk conflicted with physician s findings. [AR 17, 320-26.] See 7 Tonapetyan v. Halter, 242 F.3d at 1148; Burch v. Barnhart, 400 F.3d at 8 681. 9 Finally, the ALJ likewise properly inferred from Plaintiff s 10 three-week trip and airline flight to Thailand that he was not as 11 limited in terms of sitting, standing, and walking, as he claimed to 12 be. It is within the ALJ s purview to make such credibility 13 determinations. 14 If there is substantial evidence in the record to support the 15 credibility finding, the Court will not engage in second-guessing. 16 Thomas v. Barnhart, 278 F.3d 957, 959 (9th Cir. 2002); Tackett v. 17 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 18 for an individual with Plaintiff s alleged symptoms to endure a 19 lengthy airplane flight and weeks-long trip to Thailand, the ALJ was 20 entitled to exercise his reasonable judgment and conclude from this 21 evidence that Plaintiff was not as limited as he alleged. 22 v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008)(ALJ properly inferred 23 from claimant s ability to travel for extended time that claimant not 24 as physically limited as claimed). 25 26 27 28 Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). While it may be possible Tommasetti Substantial evidence supports the ALJ s rejection of Plaintiff s subjective symptoms. Reversal is not warranted. VI. ORDERS Accordingly, IT IS ORDERED that: 13 1 1. The decision of the Commissioner is AFFIRMED. 2 2. This action is DISMISSED WITH PREJUDICE. 3 3. The clerk of the Court shall serve this Decision and Order and 4 Judgment herein on all parties or counsel. 5 6 7 8 DATED: November 2, 2011 ________________________________ CARLA M. WOEHRLE United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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