Lisa Jefferson v. Michael J Astrue, No. 2:2012cv01516 - Document 19 (C.D. Cal. 2013)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (See Order for further details) (afe)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 13 LISA JEFFERSON, 14 Plaintiff, 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 18 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 12-1516 SS MEMORANDUM DECISION AND ORDER 19 20 21 I. 22 INTRODUCTION 23 Lisa Jefferson ( Plaintiff ) seeks review of the final decision of 24 25 the Commissioner of the Social Security Administration (the 26 Commissioner or the Agency ) to deny her application for Disability 27 Insurance Benefits ( DIB ). 28 U.S.C. § 636©, to the jurisdiction of the undersigned United States The parties consented, pursuant to 28 1 Magistrate Judge. For the reasons stated below, the decision of the 2 Commissioner is AFFIRMED. 3 4 II. 5 PROCEDURAL HISTORY 6 7 Plaintiff Lisa Jefferson filed an application for a period of 8 disability and disability insurance benefits on May 19, 2009. (AR 129). 9 She alleged a disability onset date of July 4, 2008. (Id.). 10 initially 2009. 11 Plaintiff requested a hearing, which was held before Administrative Law 12 Judge ( ALJ ) Peggy M. Zirlin on June 15, 2010. 13 2010, the ALJ issued a decision denying benefits. 14 13, 2010, Plaintiff requested that the Appeals Council review the ALJ s 15 decision. 16 on December 15, 2011. 17 February 17, 2012. denied her (AR 18-19). application on August 18, (AR 98). The Agency (AR 76). On October 8, (AR 23). On October The Appeals Council denied Plaintiff s request (AR 5-7). Plaintiff filed the instant action on 18 19 III. 20 FACTUAL BACKGROUND 21 22 A. General Factual Background 23 24 Plaintiff was born on December 16, 1960. completed level education is the tenth Plaintiff s 25 highest 26 Plaintiff was employed at National Security Group as a security guard 27 since 1995. 28 of July 4, 2008, during work. (AR 67). of (AR 47). grade. (Id.). Plaintiff claims she was injured on the evening Plaintiff alleges that she twisted her 2 1 ankle and fell on her right knee as she was running to inform her 2 manager of nearby gang activity. 3 since the injury. 4 pain, low back pain, anxiety and depression. (AR 48). (Id.). She has not been employed Plaintiff complains of constant right knee (AR 43-64). 5 6 Plaintiff alleges that she can stand or walk for only about five 7 minutes due to pain from her right knee. (AR 51). 8 that she uses a cane when she walks because her right knee unexpectedly 9 gives out, causing her to fall. (AR 50-51). Plaintiff claims Plaintiff also asserts 10 that she can only sit for about five minutes due to her low back pain. 11 Finally, Plaintiff claims that she suffers from anxiety attacks and 12 depression caused from her knee pain and her situation . 13 Plaintiff alleges that she gets anxiety attacks three to four times a 14 week. (Id.). However, Plaintiff has not received treatment for anxiety 15 or depression. (AR 59). (AR 53-54) 16 17 Plaintiff testified that she lays in bed for most of a twenty-four 18 hour day. (AR 52-53). She further testified that she only leaves her 19 bed to use the restroom or to eat. 20 any household chores. 21 provides her meals. 22 bathe herself. 23 to side effects from her medication. 24 shopping and to the movies with her friends. (AR 53). (Id.). (AR 58). (AR 52-53). Plaintiff does not do Plaintiff lives with a friend who However, Plaintiff is able to dress and Plaintiff claims that she does not drive due 25 26 27 28 3 (AR 56). Plaintiff also goes (Id.). 1 B. Medical History 2 3 On July 29, 2008, Dr. Brian Padveen, a chiropractor, examined 4 Plaintiff in connection with Plaintiff s workers compensation claim. 5 (AR 291). 6 Tepper, an orthopedic surgeon. 7 Tepper performed a right knee and ankle examination. 8 reported flexion of the right knee as 95/150. 9 reviewed an MRI of Plaintiff s right knee dated August 5, 2008 from the Following an evaluation, Plaintiff was referred to Dr. Gil (AR 234). On September 4, 2008, Dr. (AR 185, 238). (Id.). (AR 237). He Dr. Tepper also 10 Miracle Mile Medical Center. 11 of the lateral meniscus. 12 Plaintiff was an excellent candidate for a right knee arthroscopic 13 surgery. (AR 238). Dr. Tepper reported a tear Dr. Tepper also reported that (AR 238). 14 15 Plaintiff underwent outpatient arthroscopic surgery on January 9, 16 2009, with Dr. Ramin Rabbani. (AR 215-17). Following the surgery, 17 Plaintiff was instructed not to drive or operate heavy machinery, 18 perform any strenuous activities, and to keep the leg elevated as much 19 as possible for at least three days. (AR 270). 20 prescribed Norco and Naprosyn. (Id.). Plaintiff claims that her knee 21 occasionally swells as a result of the surgery. 22 testified that she elevates her legs four times a day and uses ice packs 23 to help with the swelling. Plaintiff was also (AR 65-66). Plaintiff (AR 65-66). 24 On January 13, 2009, Plaintiff returned to Dr. Tepper for a post 25 26 operative evaluation. (AR 227-30). Plaintiff claimed she had twenty 27 percent improvement since the last time she had visited Dr. Tepper. (AR 28 227). After an evaluation, Dr. Tepper diagnosed Plaintiff as status 4 1 post right knee scope and right ankle osteoarthritis. (AR 229). On 2 January 22, 2009, Plaintiff returned to Dr. Tepper for a re-evaluation. 3 (AR 231). 4 eighty percent improvement in overall symptoms since the surgery. 5 (Id.). 6 the following four weeks. (Id.). 7 Tepper on February 12, 2009. 8 with buckling, falling, sharp pain, and aching pain. (Id.). Dr. Tepper 9 prescribed Naprosyn and Cimetidine, an ice/heat machine, an inferential 10 unit to use at home for therapy, and continued physical therapy for the 11 right knee. Plaintiff stated that her knee pain was mild and noted an Dr. Tepper recommended physical therapy three times a week for Plaintiff again presented to Dr. (AR 227). She complained of knee pain (AR 228). 12 13 On May 14, 2009, Dr. Rick Pospisil examined Plaintiff in connection 14 with Plaintiff s Workers Compensation claim. 15 Pospisil diagnosed Plaintiff with post partial medial menisectomy of the 16 right knee. 17 Synvisc injection. 18 Dr. Pospisil gave Plaintiff a second Synvisc injection and put Plaintiff 19 on a weight loss program. 20 Synvisc injection which she claimed helped relieve the pain. (AR 277-278). Dr. Dr. Pospisil prescribed medication and gave Plaintiff a (AR 277-78). On a follow-up visit on July 1, 2009, (Id.). Plaintiff later received a third (AR 314). 21 22 On July 28, 2009, Dr. John Sedgh, an internist, performed a 23 consultative examination 24 application for 25 Plaintiff s right 26 swelling and limited range of motion. 27 that Plaintiff can lift and carry twenty pounds occasionally and ten 28 pounds frequently. SSI of Plaintiff, benefits. knee, Dr. (AR Sedgh in connection 188-192). found With evidence (AR 191-92). of with her respect to crepitation, Dr. Sedgh reported She can stand and walk two hours in an eight-hour 5 1 day with normal breaks. She can sit for six hours in an eight hour day. 2 Kneeling, crouching and stooping should be limited to occasional. 3 192). 4 prolonged walking. (AR Dr. Sedgh also opined that Plaintiff does not need a cane for (Id.). 5 Dr. Frank Wilson, a state agency physician,1 examined Plaintiff on 6 7 August 18, 2009. 8 arthritis, obesity, and degenerative joint disease. 9 Wilson also reported that Plaintiff has a residual function capacity to (AR 195-99). Dr. Wilson diagnosed Plaintiff with (AR 195). Dr. 10 lift 11 frequently; stand or walk for a total of at least two hours in an eight 12 hour work day with the assistance of a hand-held device; sit for a total 13 of six hours in an eight hour work day with normal breaks; and no 14 balancing, kneeling, or crawling. and carry up to twenty pounds occasionally and ten pounds (AR 196-97). 15 16 On September 23, 2009, Dr. Steven J. Brockel, a chiropractor, 17 examined Plaintiff in connection with her workers compensation claim. 18 (AR 274-85). 19 reported tenderness to palpation over the medial joint line, flexion of 20 120 degrees, and that Plaintiff ambulates with a limp favoring her right 21 knee. 22 arthritis involving the medial joint line. (AR 278). Dr. Brockel also 23 reported a sleep and anxiety disorder caused by Plaintiff s knee pain, With respect to Plaintiff s right knee, Dr Brockel (AR 277). Dr. Brockel diagnosed Plaintiff with traumatic 24 25 26 27 28 1 Disability Determination Services (DDSs) are State agencies responsible for developing medical evidence and making the initial determination on whether or not a claimant is disabled or blind under the law. Disability Determination Process, SOCIAL SECURITY, http://www.ssa.gov/disability/determination.htm (last modified Nov. 29, 2012). 6 1 as well as gastritis due to polypharmacia. (AR 278-80). Dr. Brockel 2 concluded that Plaintiff had reached maximum medical improvement. (AR 3 283). 4 5 On May 14, 2010, Plaintiff returned to Dr. Brockel with complaints 6 of continued right knee pain with weakness, that the knee gives out, 7 and that there is popping in the knee. 8 MRI of Plaintiff s right knee from May 5, 2010, Dr. Brockel reported 9 tricompartmental osteoarthritis changes, Baker cyst containing synovial 10 osteochondromas, and a bucket-handle tear of posterior horn of lateral 11 meniscus. 12 anthrogram of Plaintiff s knee from May 5, 2010. (Id.). 13 requested 14 consideration of surgery. (AR 210-211). authorization (AR 209-14). In reviewing an These findings were also seen in an MR for a knee specialist Dr. Brockel consultation for (Id.). 15 16 On June 2, 2010, Dr. Pospisil, the orthopedic surgeon, reported 17 that the May 5, 2010 MR arthrogram of Plaintiff s right knee shows that 18 Plaintiff had an extruded bucket-handle tear of the lateral meniscus 19 and posterior horn. 20 Pospisil opined that Plaintiff is a candidate to undergo right knee 21 arthroscopy . . . (Id.). (AR 317). Without further examination, Dr. 22 23 In a letter dated June 21, 2010, Dr. Pospisil wrote that Plaintiff 24 had been under his care since May 14, 2009, and that he was requesting 25 authorization for arthroscopic partial lateral meniscectomy which would 26 be followed with post-operative therapy three times a week for eight 27 weeks. 28 June 21, 2010, Dr. Pospisil reported that Plaintiff can lift up to five (AR 223). Furthermore, in a Medical Source Statement also from 7 1 pounds frequently and up to ten pounds occasionally, sit for one hour in 2 an eight hour work day, bend occasionally, but stand and walk for zero 3 hours. 4 included. (AR 226). However, no record of objective findings were (Id.). 5 6 IV. 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. § 405(g), a district court may review the 10 Commissioner s decision to deny benefits. The court may set aside the 11 Commissioner s decision when the ALJ s findings are based on legal error 12 or are not supported by substantial evidence in the record as a whole. 13 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 14 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 15 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 16 17 Substantial evidence is more than a scintilla, but less than a 18 preponderance. 19 112 F.3d 1064, 1066 (9th Cir. 1997)). 20 reasonable person might accept as adequate to support a conclusion. 21 (Id.) (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 22 determine whether substantial evidence supports a finding, the court 23 must consider the record as a whole, weighing both evidence that 24 supports 25 conclusion. 26 F.3d 953, 956 (9th Cir. 1993)). 27 either affirming or reversing that conclusion, the court may not and Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, evidence that It is relevant evidence which a detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 If the evidence can reasonably support 28 8 1 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 2 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 3 4 5 V. 6 DISCUSSION 7 8 The 9 Plaintiff s Subjective Pain Testimony ALJ Provided Clear And Convincing Reasons for Rejecting 10 11 Plaintiff contends that the ALJ failed to provide clear and 12 convincing reasons for rejecting Plaintiff s testimony regarding her 13 subjective symptoms. 14 argues that the ALJ improperly rejected Plaintiff s testimony because it 15 lacked support in the objective medical evidence. 16 Court disagrees. (Pl s Memorandum at 5). Specifically, Plaintiff (Id. at 6-8). The 17 18 Credibility determinations are the province of the ALJ. Andrews v. 19 Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). 20 claimant s testimony regarding subjective pain or symptoms is credible, 21 an ALJ must engage in a two-step analysis. 22 F.3d 1028, 1035-36 (9th Cir. 2006). 23 objective medical evidence of an underlying impairment or impairments 24 that could reasonably be expected to produce some degree of symptom. 25 Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). 26 plaintiff meets this threshold, and there is no evidence of malingering, 27 the ALJ can reject the plaintiff s testimony about the severity of her 28 symptoms only by offering specific, clear and convincing reasons for 9 To determine whether a Lingenfelter v. Astrue, 504 First, the plaintiff must produce Second, if the 1 doing so. (Id. at 1281). While subjective pain testimony cannot be 2 rejected on the sole ground that it is not corroborated by objective 3 medical evidence, the medical evidence is still a relevant factor in 4 determining the severity of the claimant's pain and its disabling 5 effect. 6 also Regennitter v. Comm r Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th 7 Cir. 1999)(inconsistencies with clinical observations can satisfy the 8 requirement 9 claimant s testimony. ). Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); see of a clear and convincing reason for discrediting a Other factors that an ALJ may consider when 10 assessing the plaintiff s credibility include: (1) ordinary techniques 11 of credibility evaluation, such as the plaintiff s reputation for lying, 12 prior 13 testimony 14 unexplained or inadequately explained failure to seek treatment or to 15 follow a prescribed course of treatment; (3) the plaintiff s daily 16 activities. 17 If the ALJ s credibility finding is supported by substantial evidence in 18 the record, the court may not engage in second-guessing. 19 Barnhart, 278 F.3d 947, 959 (9th Cir. 2001). inconsistent by the statements plaintiff concerning that the appears symptoms, less than and candid; other (2) Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Thomas v. 20 21 The ALJ provided clear and convincing reasons for rejecting 22 Plaintiff s testimony. Initially, the ALJ determined that Plaintiff s 23 subjective complaints and alleged limitations are out of proportion to 24 the objective clinical findings. 25 Plaintiff s subjective complaints and limitations are not consistent 26 with the treatment she received. 27 Plaintiff were as disabled as she claims, it is reasonable to believe 28 that she would take full advantage of treatment options available to her (AR 37-38). (AR 38). 10 The ALJ also found that The ALJ reasoned that if 1 from her Workers 2 Finally, 3 inconsistencies in the testimony. the Compensation ALJ doctors, discredited but she Plaintiff s did not. testimony (Id.) due to 4 5 As noted above, the ALJ first determined that Plaintiff s testimony 6 regarding her subjective limitations was out of proportion to the 7 objective medical findings. 8 she is bed-bound nearly twenty fours per day, the ALJ noted that there 9 is no evidence of severe disuse muscle atrophy or loss of muscle tone 10 that would be compatible with her alleged inactivity and inability to 11 function. 12 as much as possible for the three days following her surgery. 13 The medical records contain no further indications of required bed-rest 14 or that she must elevate her body parts during a normal workday. 15 38). 16 The ALJ noted, however, that no such problems were reflected in the 17 medical records. 18 two reports of Plaintiff falling: once after her injury in July 2008 and 19 once after her surgery in February 2009. 20 inconsistencies with the objective medical evidence are clear and 21 convincing reasons to reject Plaintiff s testimony. (AR 37). With respect to Plaintiff s testimony that Plaintiff was instructed to keep her leg elevated Moreover, Plaintiff testified (AR 37). (AR 270). that she falls a lot. (AR (AR 51). In fact, the medical records contain only (AR 277, 296). These 22 23 The ALJ also determined that Plaintiff s subjective complaints were 24 inconsistent with the treatment she received. 25 Plaintiff complained of a wide variety of ailments, she really only 26 sought treatment for her knee condition. 27 further treatment through her workers compensation claim as well as 28 through her access to County health care, but did not seek treatment for 11 (AR 38). Although Plaintiff had access to 1 other alleged impairments. Plaintiff s limited treatment history, 2 therefore, undermines the credibility of Plaintiff s subjective symptom 3 testimony. 4 5 Furthermore, Plaintiff claimed that she experiences adverse side 6 effects from her medication, primarily sleepiness. 7 noted, however, that there was no corroboration in the medical record. 8 (AR 9 medication 38). Plaintiff s was to only Dr. mention Brockel, (AR 280). who of (AR 53). dissatisfaction diagnosed gastritis The ALJ with due her to 10 polypharmacia. See Osenbrock v. Apfel, 240 F.3d 1157, 1164 11 (9th Cir. 2001)(side effects from medication properly excluded where 12 there was only passing mentions of the side effects from medication in 13 some of the medical records). 14 15 Plaintiff testified that she suffers from anxiety and depression 16 due to her situation. (AR 52, 59-60). 17 suffers from anxiety attacks three to four times a week, varying in 18 lengths of fifteen minutes or longer. 19 above, because Plaintiff receives support from General Relief, she can 20 seek treatment for psychiatric and cognitive disorders from County 21 hospitals and medical clinics, and very likely through her workers 22 compensation claim. 23 assume that, if [Plaintiff] were as disabled as she claims, she would 24 take advantage of treatment options available to her. (Id.). 25 although Plaintiff did seek treatment for her knee condition, she failed 26 to seek treatment for any other illness or symptom that she allegedly 27 suffers from. (AR 38). Plaintiff testified that she (AR 59). However, as noted The ALJ stated that it is reasonable to However, (Id.). See Tommasetti, 533 F.3d at 1039 (an ALJ may 28 12 1 consider a claimant s unexplained or inadequately explained failure to 2 seek treatment in assessing credibility). 3 4 The ALJ also observed that it would be reasonable to expect that 5 Plaintiff s alleged additional symptoms or ailments would be reflected 6 in the various workers compensation reports. 7 record did not reflect any reporting to Plaintiff s doctors of such 8 severe panic or anxiety attacks or other such symptoms. (AR 34). (AR 34). However, the 9 10 In sum, the Court concludes that the ALJ provided clear and 11 convincing reasons for rejecting Plaintiff s testimony regarding her 12 subjective complaints and limitations. 13 required. 14 \\ 15 \\ 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 13 Accordingly, no remand is 1 VI. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner and dismissing this 6 action with prejudice. 7 Court serve copies of this order and the Judgment on counsel for both 8 parties. IT IS FURTHER ORDERED that the Clerk of the 9 10 DATED: February 25, 2013 11 12 13 14 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 15 16 17 THIS MEMORANDUM AND DECISION IS NOT INTENDED FOR PUBLICATION ON WESTLAW, LEXIS OR ANY OTHER ELECTRONIC REPORTING OR PUBLISHING SERVICE 18 19 20 21 22 23 24 25 26 27 28 14

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