Ramiro L Leon v. Michael J Astrue, No. 2:2011cv06103 - Document 19 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge John E. McDermott, IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is AFFIRMED and this case dismissed with prejudice. (SEE OPINION FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 RAMIRO L. LEON, Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-6103-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On July 28, 2011, Ramiro L. Leon ( Plaintiff or Claimant ) filed a complaint seeking 20 review of the decision by the Commissioner of Social Security ( Commissioner ) denying 21 Plaintiff s application for Social Security Disability Insurance benefits. The Commissioner filed 22 an Answer on November 7, 2011. On April 2, 2012, the parties filed a Joint Stipulation ( JS ). 23 The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate 25 Judge. After reviewing the pleadings, transcripts, and administrative record ( AR ), the Court 26 concludes that the Commissioner s decision should be affirmed and the case dismissed with 27 prejudice. 28 BACKGROUND 1 2 Plaintiff is a 52 year old male who applied for Social Security Disability Insurance 3 benefits on January 18, 2008, alleging disability beginning December 1, 2007. (AR 22.) 4 Plaintiff has not engaged in substantial gainful activity since that date. (AR 24.) 5 Plaintiff s claim was denied initially on April 11, 2008, and on reconsideration on August 6 5, 2008. (AR 22.) Plaintiff filed a timely request for hearing, which was held before 7 Administrative Law Judge ( ALJ ) Helen E. Hesse on September 15, 2009, in Orange, 8 California. (AR 22.) Claimant appeared and testified at the hearing, and was represented by 9 counsel. (AR 22.) Medical expert Sami A. Nafoosi, M.D., and vocational expert ( VE ) Alan L. 10 Ey, also appeared and testified at the hearing. (AR 22.) The ALJ issued an unfavorable 11 decision on November 6, 2009. (AR 22-28.) The Appeals Council denied review on May 27, 12 2011. (AR 1-8.) 13 DISPUTED ISSUES 14 As reflected in the Joint Stipulation, Plaintiff raises only one issue as a ground for 15 reversal and remand: 16 17 18 1. Whether the ALJ properly considered the testimony of Ramiro Leon. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 19 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 20 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 21 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 22 based on the proper legal standards). 23 Substantial evidence means more than a mere scintilla, but less than a 24 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 25 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 26 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. at 27 401 (internal quotation marks and citation omitted). 28 2 1 This Court must review the record as a whole and consider adverse as well as 2 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where 3 evidence is susceptible to more than one rational interpretation, the ALJ s decision must be 4 upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 5 However, a reviewing court must consider the entire record as a whole and may not affirm 6 simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 7 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 8 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 9 10 The Social Security Act defines disability as the inability to engage in any substantial 11 gainful activity by reason of any medically determinable physical or mental impairment which 12 can be expected to result in death or . . . can be expected to last for a continuous period of not 13 less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 14 established a five-step sequential process to determine whether a claimant is disabled. 20 15 C.F.R. §§ 404.1520, 416.920. 16 The first step is to determine whether the claimant is presently engaging in substantial 17 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 18 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 19 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 20 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 21 significantly limit the claimant s ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 22 1996). Third, the ALJ must determine whether the impairment is listed, or equivalent to an 23 impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d 24 at 746. If the impediment meets or equals one of the listed impairments, the claimant is 25 presumptively disabled. Bowen v. Yuckert, 482 U.S. at 141. Fourth, the ALJ must determine 26 whether the impairment prevents the claimant from doing past relevant work. Pinto v. 27 Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before making the step four determination, 28 3 1 1 the ALJ first must determine the claimant s residual functional capacity ( RFC ). 20 C.F.R. § 2 416.920(e). The RFC must consider all of the claimant s impairments, including those that are 3 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. If 4 the claimant cannot perform his or her past relevant work or has no past relevant work, the ALJ 5 proceeds to the fifth step and must determine whether the impairment prevents the claimant 6 from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th 7 Cir. 2000). The claimant bears the burden of proving steps one through four, consistent with the 8 9 general rule that at all times the burden is on the claimant to establish his or her entitlement to 10 benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the claimant, the 11 burden shifts to the Commissioner to show that the claimant may perform other gainful activity. 12 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a 13 claimant is not disabled at step five, the Commissioner must provide evidence demonstrating 14 that other work exists in significant numbers in the national economy that the claimant can do, 15 given his or her RFC, age, education, and work experience. 20 C.F.R. § 416.912(g). If the 16 Commissioner cannot meet this burden, then the claimant is disabled and entitled to benefits. 17 Id. THE ALJ DECISION 18 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 19 20 not engaged in substantial gainful activity since December 1, 2007, the alleged onset date. (AR 21 24.) At step two, the ALJ determined that Plaintiff has the following combination of medically 22 23 determinable severe impairments: diabetes mellitus with evidence of an organ damage 24 including retinopathy and nephropathy, and hypertension. (AR 24. ) 25 26 27 28 1 Residual functional capacity ( RFC ) is what one can still do despite [his or her] limitations and represents an assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 4 1 At step three, the ALJ determined that Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals one of the listed impairments. (AR 3 26.) 4 The ALJ then found that the Plaintiff had the RFC to perform medium work, specifically 5 as follows: 6 The claimant can lift and/or carry 50 pounds occasionally and 25 pounds 7 frequently. He is precluded from balancing; climbing ladders, ropes or 8 scaffolding; and working at unprotected heights, around dangerous or fast 9 moving machinery, and around open pools of water. 10 (AR 26.) In determining this RFC, the ALJ also made an adverse credibility determination. (AR 11 27.) 12 At step four, the ALJ found that Plaintiff is capable of performing his past relevant work 13 as a welder, as that job does not require the performance of work-related activities precluded by 14 the claimant s RFC. (AR 28.) 15 Consequently, the ALJ concluded that Claimant is not disabled within the meaning of the 16 Social Security Act. (AR 28.) DISCUSSION 17 18 The ALJ decision must be affirmed. The ALJ properly discounted Plaintiff s subjective 19 symptom testimony. The ALJ s non-disability determination is supported by substantial 20 evidence and free of legal error. 21 A. Relevant Federal Law 22 The test for deciding whether to accept a claimant s subjective symptom testimony turns 23 on whether the claimant produces medical evidence of an impairment that reasonably could be 24 expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 25 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Smolen, 80 26 F.3d at 1281-82 & n.2. The Commissioner may not discredit a claimant s testimony on the 27 severity of symptoms merely because it is unsupported by objective medical evidence. 28 Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant s 5 1 symptom testimony not credible, the ALJ must specifically make findings which support this 2 conclusion. Bunnell, 947 F.2d at 345. These findings must be sufficiently specific to permit 3 the court to conclude that the ALJ did not arbitrarily discredit [the] claimant s testimony. 4 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); see also Rollins v. Massanari, 261 F.3d 5 at 856-57; Bunnell, 947 F.2d at 345-46. Unless there is evidence of malingering, the ALJ can 6 reject the claimant s testimony about the severity of her symptoms only by offering specific, 7 clear and convincing reasons for doing so. Smolen, 80 F.3d at 1283-84; see also Reddick, 8 157 F.3d at 722. The ALJ must identify what testimony is not credible and what evidence 9 discredits the testimony. Reddick, 157 F.3d at 722; Smolen, 80 F.3d at 1284. 10 B. Analysis 11 Claimant alleges he is unable to work due to diabetes and hypertension. (AR 26.) He 12 claims his feet hurt, he experiences dizziness and blurry vision, and he has daily headaches. 13 (AR 26.) Claimant says he has to lay down four times a day due to the pain in his feet and 14 cannot walk more than half a block. (AR 26.) 15 In determining Plaintiff s RFC, the ALJ concluded that Plaintiff s medically determinable 16 impairments reasonably could be expected to cause his alleged symptoms. (AR 27.) The ALJ, 17 however, found that Plaintiff s statements regarding the intensity, persistence and limiting 18 effects of his symptoms were not credible to the extent they are inconsistent with the ALJ s 19 RFC. (AR 27.) Because there was no finding of malingering, the ALJ was required to provide 20 clear and convincing reasons supported by substantial evidence to discount Plaintiff s 21 credibility. Smolen, 80 F.3d at 1283-84. The ALJ did so. 22 The ALJ found that Plaintiff could perform medium level work with postural and 23 environmental limitations (AR 26), including his past relevant work as a welder. (AR 28.) The 24 ALJ based these assessments on the objective medical evidence, including the opinions of 25 Dr. To and Dr. Jani who examined Plaintiff, State agency reviewer Dr. Brodsky, and testifying 26 medical expert Dr. Nafoosi. (AR 27.) Dr. To noted that Plaintiff s blood pressure was controlled 27 on medication. (AR 27.) An ALJ is entitled to consider whether there is a lack of medical 28 evidence to corroborate a claimant s alleged symptoms so long as it is not the only reason for 6 1 discounting a claimant s credibility. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005); 2 Thomas, 278 F.3d at 959. Plaintiff does not dispute that there is medical evidence of record at 3 odds with his alleged subjective symptoms. 4 The ALJ did not rely solely on the medical evidence in discounting Plaintiff s credibility. 5 The ALJ also noted that Plaintiff was laid off work not because of medical reasons and received 6 unemployment benefits, which requires certification of the ability to work. (AR 27, 41-42.) This 7 is a valid reason for discounting a claimant s credibility. Carmickle v. Comm r of Soc. Sec., 533 8 F.3d 1155, 1161-62 (9th Cir. 2008); Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988); 9 Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997). Plaintiff does not challenge or even 10 discuss this finding. 11 The ALJ discounted Plaintiff s credibility for clear and convincing reasons supported by 12 substantial evidence. The ALJ s RFC is supported by substantial evidence. The ALJ s non13 disability determination is supported by substantial evidence and free of legal error. 14 15 ORDER IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is 16 AFFIRMED and this case dismissed with prejudice. 17 LET JUDGMENT BE ENTERED ACCORDINGLY. 18 19 DATED: June 1, 2012 20 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 7

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