Irma Salinas v. Michael J Astrue, No. 2:2011cv04478 - Document 18 (C.D. Cal. 2012)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (am)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 IRMA SALINAS, 12 13 14 15 16 17 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. ) Case No. CV 11-4478-SP ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION 21 On June 3, 2011, plaintiff Irma Salinas filed a complaint against defendant 22 Michael J. Astrue, seeking a review of a denial of Disability Insurance Benefits 23 ( DIB ). Both plaintiff and defendant have consented to proceed for all purposes 24 before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties 25 briefing is now complete, and the court deems the matter suitable for adjudication 26 without oral argument. The sole issue presented for decision here is whether the Administrative Law 27 28 Judge ( ALJ ) properly evaluated plaintiff s credibility and subjective symptoms. 1 Pl. s Mem. at 4-14; Def. s Mem. at 3-8. Having carefully studied, inter alia, the 2 parties written submissions and the Administrative Record ( AR ), the court 3 concludes that, as detailed herein, the ALJ appropriately discounted plaintiff s 4 credibility and her subjective complaints based upon clear and convincing reasons. 5 The court therefore affirms the Commissioner s decision denying benefits. 6 II. 7 FACTUAL AND PROCEDURAL BACKGROUND 8 Plaintiff, who was fifty years old on the date of her April 6, 2010 9 administrative hearing, has a high school degree and some college education. See 10 AR at 56, 206. Her past relevant work includes employment as a typist, 11 administrative clerk, and cashier. Id. at 56-60, 72-73. 12 Plaintiff applied for DIB on July 2, 2008, alleging that she has been disabled 13 since May 8, 2007 due to mild osteoarthritis, and lower back injury and pain. See 14 AR at 21, 80, 85. Plaintiff s application was denied initially, after which she filed a 15 request for a hearing. Id. at 80, 85-89, 90-94. 16 A total of three administrative hearings were held. The first two hearings 17 held on May 11 and October 27, 2009 were continued to allow for additional 18 medical evidence to be submitted. AR at 39-46, 49-52. On April 6, 2010, plaintiff, 19 proceeding pro se, appeared and testified at a hearing before the ALJ. Id. at 55-68, 20 71-72, 74, 76-78. The ALJ also heard testimony from Dr. Thomas J. Maxwell, a 21 medical expert ( ME ), and Rheta Baron King, a vocational expert ( VE ). Id. at 22 68-71, 72-78; see also id. at 140-43, 144. On May 25, 2010, the ALJ denied 23 plaintiff s request for benefits. Id. at 21-34. 24 Applying the well-known five-step sequential evaluation process, the ALJ 25 found, at step one, that plaintiff engaged in substantial gainful activity from May 8, 26 2007 through June 2008. AR at 24. The ALJ also found that plaintiff did not 27 engage in substantial gainful activity . . . from July 2008 through the present. Id. at 28 25 (emphasis omitted). 2 1 At step two, the ALJ found that plaintiff suffers from severe medically 2 determinable impairments consisting of: degenerative disc disease of the 3 lumbosacral spine; degenerative joint disease of the lumbosacral spine; and a 4 history of being overweight. AR at 25 (emphasis omitted). The ALJ also found 5 that plaintiff suffers from a depressive disorder, but that this impairment is non6 severe. Id. 7 At step three, the ALJ determined that the evidence does not demonstrate that 8 plaintiff s impairments, either individually or in combination, meet or medically 9 equal the severity of any listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix 10 1. AR at 26. The ALJ then assessed plaintiff s residual functional capacity ( RFC )1/ and 11 12 determined that she can lift twenty pounds occasionally and ten pounds frequently. 13 AR at 27. The ALJ further found that: 14 She has no limitations on the abilities to stand, walk, or sit. Her ability 15 to push and pull is limited to twenty pounds. She can frequently climb, 16 balance, kneel, crouch, crawl, and stoop. She has only slight 17 limitations in the abilities to understand, remember, and carry out 18 detailed instructions; make judgments on simple work-related 19 decisions; and respond appropriately to changes in a routine work 20 setting. Here, slight is defined as some mild limitations in this area, 21 but the individual can generally function well. The evidence does not 22 establish any other limitations. 23 24 1/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n.5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 28 2007). 3 1 Id. (emphasis omitted). 2 The ALJ found, at step four, that plaintiff is capable of performing past 3 relevant work as a typist, administrative clerk, and cashier-checker. AR at 32. 4 The ALJ proceeded on to step five to make alternative findings. Based upon 5 plaintiff s vocational factors and RFC, the ALJ found that plaintiff has acquired 6 work skills from past relevant work that are transferrable to other occupations with 7 jobs existing in significant numbers in the national economy. AR at 33 (emphasis 8 omitted). The ALJ therefore concluded that plaintiff was not suffering from a 9 disability as defined by the Social Security Act. Id. at 22, 34. 10 Plaintiff filed a timely request for review of the ALJ s decision, which was 11 denied by the Appeals Council. AR at 1-3, 12. The ALJ s decision stands as the 12 final decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 17 Administration must be upheld if they are free of legal error and supported by 18 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 19 But if the court determines that the ALJ s findings are based on legal error or are 20 not supported by substantial evidence in the record, the court may reject the findings 21 and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 22 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 23 Substantial evidence is more than a mere scintilla, but less than a 24 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 25 evidence which a reasonable person might accept as adequate to support a 26 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 27 F.3d at 459. To determine whether substantial evidence supports the ALJ s finding, 28 the reviewing court must review the administrative record as a whole, weighing 4 1 both the evidence that supports and the evidence that detracts from the ALJ s 2 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 3 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 4 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 5 evidence can reasonably support either affirming or reversing the ALJ s decision, 6 the reviewing court may not substitute its judgment for that of the ALJ. Id. 7 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 8 IV. 9 DISCUSSION 10 Plaintiff argues that the ALJ failed to properly assess her credibility. See Pl. s 11 Mem. at 4-14. Specifically, plaintiff maintains that [t]he ALJ d[id] not offer a 12 single legally sufficient reason to reject [her] testimony. Id. at 6. Having carefully 13 reviewed the record, the court disagrees with plaintiff. 14 A claimant carries the burden of producing objective medical evidence of his 15 or her impairments and showing that the impairments could reasonably be expected 16 to produce some degree of the alleged symptoms. Benton ex rel. Benton v. 17 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). But once the claimant meets that 18 burden, medical findings are not required to support the alleged severity of pain. 19 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. 20 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) ( claimant need not present 21 clinical or diagnostic evidence to support the severity of his pain (citation 22 omitted)). 23 Instead, once a claimant has met the burden of producing objective medical 24 evidence, an ALJ can reject the claimant s subjective complaint only upon (1) 25 finding evidence of malingering, or (2) expressing clear and convincing reasons for 26 doing so. Benton, 331 F.3d at 1040. The ALJ may consider the following factors 27 in weighing the claimant s credibility: (1) his or her reputation for truthfulness; (2) 28 inconsistencies either in the claimant s testimony or between the claimant s 5 1 testimony and his or her conduct; (3) his or her daily activities; (4) his or her work 2 record; and (5) testimony from physicians and third parties concerning the nature, 3 severity, and effect of the symptoms of which she complains. Thomas v. Barnhart, 4 278 F.3d 947, 958-59 (9th Cir. 2002). 5 Here, the ALJ did not find evidence of malingering. See generally AR at 21- 6 34. Thus, in rejecting plaintiff s credibility the ALJ was required to articulate clear 7 and convincing reasons. See Benton, 331 F.3d at 1040. Having carefully reviewed 8 the record, the court finds that the ALJ provided several clear and convincing 9 reasons for discounting plaintiff s subjective complaints. 10 First, although plaintiff alleges that she can only walk ten to fifteen feet, stand 11 forty-five minutes, and sit one hour, that she cannot bend, twist, lift anything over 12 10 lbs, and that her pain prevents [her] from doing [her] normal duties on a daily 13 basis (AR at 210, 217, 237), the ALJ found that the objective medical evidence 14 does not support plaintiff s alleged degree of disability. Id. at 30-31. Specifically, 15 the ALJ found that no examining or reviewing physician has rendered an opinion 16 fully supporting [plaintiff s] allegations. In fact, several find her to be much more 17 capable than she claims. Id. at 31; see Batson v. Comm r, 359 F.3d 1190, 1197 18 (9th Cir. 2004) (lack of objective medical evidence supporting a claimant s 19 descriptions of pain and limitations negatively affected the claimant s credibility 20 regarding his inability to work); Thomas, 278 F.3d at 959 (same). Although a lack 21 of objective evidence supporting plaintiff s symptoms cannot be the sole reason for 22 rejecting her testimony, it can be one of several factors used in evaluating the 23 credibility of her subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 24 856-57 (9th Cir. 2001). 25 Second, the ALJ properly discredited plaintiff s subjective complaints as 26 inconsistent with her conservative treatment. See AR at 31 ( [plaintiff] has had 27 only routine and conservative treatment . . . [, which] appears to be inconsistent with 28 the allegations of severe, painful, and debilitating conditions ). Indeed, plaintiff 6 1 stated in her Pain Questionnaire that her treatment consisted of: us[ing] a back 2 support ; applying icy-hot on [her] back when needed ; put[ting] cold pads on 3 [her] back ; and acupuncture. Id. at 216. Plaintiff further testified that she take[s] 4 [her] medication only when [she has] the severe pain and that she takes the 5 muscle spasm[] [medication] in the evening. Id. at 63; see also id. at 302-15 6 (record of plaintiff receiving physical therapy in 2007). [E]vidence of 7 conservative treatment is sufficient to discount a claimant s testimony regarding 8 severity of an impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) 9 (citation omitted); see Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ 10 properly considered, as part of credibility evaluation, claimant s failure to request 11 medical treatment commensurate with the supposedly excruciating pain alleged, 12 and the minimal, conservative treatment (citation omitted)); Fair v. Bowen, 885 13 F.2d 597, 604 (9th Cir. 1989) (ALJ permissibly considered discrepancies between 14 the claimant s allegations of persistent and increasingly severe pain and the nature 15 and extent of treatment obtained). 16 Notwithstanding this history of conservative treatment, more recent medical 17 evidence suggests less conservative treatment. For instance, on September 8, 2010, 18 plaintiff underwent an epidural steroid injection. AR at 463-64; see, e.g., Yang v. 19 Barnhart, 2006 WL 3694857, at *4 (C.D. Cal. 2006) (ALJ s finding that claimant 20 received conservative treatment was not supported by substantial evidence when 21 claimant was treated with, inter alia, epidural injections). But although a district 22 court considers on appeal both the ALJ s decision and new material evidence,2/ the 23 evidence must relate[] to the period on or before the date of the [ALJ s] decision. 24 20 C.F.R. § 404.976(b)(1). Because the evidence of more aggressive treatment 25 post-dates the ALJ s decision on May 25, 2010, this court may not entertain such 26 evidence in its decision. 27 28 2/ Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993) (citations omitted). 7 1 Third, the ALJ properly discounted plaintiff s subjective complaints based 2 upon ordinary techniques of trustworthiness determination, such as contradictions 3 between plaintiff s testimony and her conduct. See AR at 24-25, 31; see also 4 Thomas, 278 F.3d at 958-59 (when weighing a claimant s credibility, the ALJ may 5 consider inconsistencies between the claimant s testimony and her conduct). 6 Despite alleging that she has been disabled since May 8, 2007, the ALJ noted that 7 plaintiff did not stop working due to disability. AR at 31. Plaintiff was able to 8 return to work with modified duties about one week after her alleged disability 9 onset date. Id. at 61. Plaintiff was, however, subsequently placed on medical leave 10 for approximately five months, from May 2007 through September 2007. Id. at 31, 11 61. Plaintiff then returned to work part time on September 4, 2007, 4 hours per 12 day and 5 days per week. On April 25, 2008, [her] work schedule increased to 8 13 hours per day and 4 days per week. Id. at 200. In fact, as noted by the ALJ, the 14 cessation of work activity [in June 2008] was the result of a generalized layoff with 15 ten other individuals, not because of plaintiff s alleged disability. Id. at 31; see 16 also id. at 273 (Dr. Rossana Natividad opined that plaintiff could start working 8 17 hours per day, 4 days a week starting April 1, 2008 to January 1, 2009 ). The ALJ 18 therefore found that this discrepancy [between plaintiff s work history and her 19 alleged inability to work] damages [her] credibility. Id. at 31. This is a clear and 20 convincing reason. 21 Fourth, the ALJ properly rejected plaintiff s credibility based upon her 22 inconsistent statements regarding her allegations of pain. See Tonapetyan, 242 F.3d 23 at 1148 (ALJ may engage in ordinary techniques of credibility evaluation, such as 24 considering inconsistencies in a claimant s testimony). In this case, as the ALJ 25 noted, although plaintiff told Dr. Jose Senador that she would feel tingling 26 sensation in the right lower extremity after prolonged sitting . . . Dr. Senador found 27 that in another doctor s report, [plaintiff] indicated that her pain would radiate 28 towards her left thigh. AR at 31 (citing AR at 428). This is also a clear and 8 1 convincing reason. 2 Fifth, the ALJ properly discounted plaintiff s credibility based upon his 3 finding that plaintiff s reports of her daily activities are inconsistent with the degree 4 of pain and impairment plaintiff alleges. See AR at 31. Plaintiff is of course correct 5 that the fact that she can perform some activities does not by itself mean that 6 plaintiff is not disabled, and the ALJ recognized this. See id. ( The ability to 7 engage in some normal daily activities does not prove that one is able to perform 8 competitive work on a regular and continuous basis. ). But the ALJ here properly 9 compared plaintiff s statements about her daily activities with her subjective 10 complaints for the limited purpose of determining her credibility. Having found 11 that her specified daily activities involve the performance of functions readily 12 transferrable to competitive work, the ALJ properly concluded plaintiff has better 13 physical and mental capacities than she has stated. See id. Although plaintiff 14 repeatedly cites to Reddick for the proposition that [o]nly if the level of activity 15 were inconsistent with Claimant s claimed limitations would these activities have 16 any bearing on Claimant s credibility (Reddick, 157 F.3d at 722; see Pl. s Mem. at 17 9-10), that is precisely what the ALJ found here. Consequently, the ALJ properly 18 determined these inconsistencies indicated plaintiff has not been completely 19 frank. See AR at 31. 20 Given all of these legitimate reasons for discounting plaintiff s credibility 21 stated by the ALJ, the court finds that the ALJ did not fail to provide clear and 22 convincing reasons for rejecting plaintiff s subjective complaints of pain and 23 limitation. 24 25 26 27 28 9 1 V. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING 4 the decision of the Commissioner denying benefits, and dismissing this action with 5 prejudice. 6 7 Dated: April 23, 2012 8 ____________________________________ 9 SHERI PYM UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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