James R Avilez v. Michael J Astrue, No. 2:2012cv03771 - Document 22 (C.D. Cal. 2013)

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 the complaint with prejudice. (am)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES R. AVILEZ, 12 13 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social Security ) Administration, ) ) Defendant. ) ) ) Case No. CV 12-3771-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On May 4, 2012, plaintiff James R. Avilez filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 ( Commissioner ), seeking a review of a denial of supplemental security income 24 ( SSI ). Both plaintiff and defendant have consented to proceed for all purposes 25 before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court 26 deems the matter suitable for adjudication without oral argument. 27 Plaintiff presents one issue for decision: whether the Administrative Law 28 1 1 Judge ( ALJ ) properly discounted plaintiff s subjective complaints. Joint 2 Stipulation ( JS ) at 4-21. 3 Having carefully studied, inter alia, the parties s moving papers, the 4 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 5 that, as detailed herein, the ALJ properly discounted plaintiff s credibility. 6 Consequently, this court affirms the decision of the Commissioner denying 7 benefits. 8 9 10 II. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was forty-two years old on the date of his March 19, 2010 11 administrative hearing, has an eleventh grade education. AR at 28, 44, 129. 12 Plaintiff has past relevant work experience as a construction worker. Id. at 28, 13 132. 14 On October 8, 2008, plaintiff filed an application for SSI, alleging that he 15 has been disabled since November 1, 2007, due to pain in the right knee, right 16 arm, and fractured elbow. Id. at 120, 125. The Commissioner denied plaintiff s 17 application initially and upon reconsideration, after which he filed a request for a 18 hearing. Id. at 20, 71-81, 84-86. 19 On March 19, 2010, plaintiff, represented by counsel, appeared and testified 20 at a hearing before the ALJ. Id. at 35-66. On October 18, 2010, the ALJ denied 21 plaintiff s claim for benefits. Id. at 17-30. 22 Applying the well-known five-step sequential evaluation process, the ALJ 23 found, at step one, that plaintiff had not engaged in substantial gainful activity 24 since October 8, 2008, the application date. Id. at 23. 25 At step two, the ALJ found that plaintiff suffered from the following severe 26 combination of impairments: obesity; degenerative lateral meniscus of the right 27 knee with chondromalacia; status post femoral condyle arthroplasty; gout with 28 2 1 symptoms of swollen right elbow and left knee; and degenerative disc disease of 2 the lumbar spine with spinal stenosis and disc bulge. Id. The ALJ ruled out 3 depression. Id. 4 At step three, the ALJ found that plaintiff s impairments, whether 5 individually or in combination, did not meet or medically equal one of the listed 6 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 7 Listings ). Id. at 23-24. The ALJ then assessed plaintiff s residual functional capacity ( RFC ) 1 and 8 9 determined that he had the RFC to perform light work, with the limitations that 10 plaintiff can: lift up to twenty-five pounds occasionally and ten pounds frequently; 11 stand and walk, with normal breaks, for up to six hours, cumulatively, and sit, with 12 normal breaks, for up to six hours, cumulatively, in an eight-hour workday; 13 occasionally bend, stoop, kneel, crawl, and climb, but never use ladders, ropes, or 14 scaffolds. Id. at 24-28. 15 The ALJ found, at step four, that plaintiff was unable to perform his past 16 relevant work as a construction worker. Id. at 28. 17 At step five, the ALJ found that there were jobs that existed in significant 18 numbers in the national economy that plaintiff could perform, including 19 gluer/labeler, assembler, inspector and hand packager, inspection clerk, product 20 folder, and hand bander. Id. at 29-30, 210. Consequently, the ALJ concluded that 21 plaintiff did not suffer from a disability as defined by the Social Security Act 22 ( SSA ). Id. at 30. 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 1155-56 n.5-7 (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 27 assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 3 1 Plaintiff filed a timely request for review of the ALJ s decision, which was 2 denied by the Appeals Council. Id. at 1-6. The ALJ s decision stands as the final 3 decision of the Commissioner. 4 III. 5 STANDARD OF REVIEW 6 This court is empowered to review decisions by the Commissioner to deny 7 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 8 Administration must be upheld if they are free of legal error and supported by 9 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 10 (as amended). But if the court determines that the ALJ s findings are based on 11 legal error or are not supported by substantial evidence in the record, the court 12 may reject the findings and set aside the decision to deny benefits. Aukland v. 13 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 14 1144, 1147 (9th Cir. 2001). 15 Substantial evidence is more than a mere scintilla, but less than a 16 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 17 relevant evidence which a reasonable person might accept as adequate to support 18 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 19 F.3d at 459. To determine whether substantial evidence supports the ALJ s 20 finding, the reviewing court must review the administrative record as a whole, 21 weighing both the evidence that supports and the evidence that detracts from the 22 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 23 affirmed simply by isolating a specific quantum of supporting evidence. 24 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 25 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 26 the ALJ s decision, the reviewing court may not substitute its judgment for that 27 28 4 1 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 2 1992)). 3 IV. 4 DISCUSSION 5 Plaintiff complains that the ALJ failed to provide clear and convincing 6 reasons to reject his testimony regarding his physical limitations. JS at 4-14. The 7 court disagrees. 8 The ALJ must make specific credibility findings, supported by the record. 9 Social Security Ruling ( SSR ) 96-7p.2 To determine whether testimony 10 concerning symptoms is credible, the ALJ engages in a two-step analysis. 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 12 must determine whether a claimant produced objective medical evidence of an 13 underlying impairment which could reasonably be expected to produce the pain 14 or other symptoms alleged. Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 15 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 16 malingering, an ALJ can reject the claimant s testimony about the severity of her 17 symptoms only by offering specific, clear and convincing reasons for doing so. 18 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Benton v. Barnhart, 331 19 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in 20 weighing a claimant s credibility, including: (1) ordinary techniques of credibility 21 evaluation such as a claimant s reputation for lying; (2) the failure to seek 22 treatment or follow a prescribed course of treatment; and (3) a claimant s daily 23 24 25 26 27 28 2 The Commissioner issues Social Security Rulings to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 5 1 activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 2 947 F.2d at 346-47. 3 Here, at the first step, the ALJ found that plaintiff s medically determinable 4 impairments could reasonably be expected to cause the symptoms alleged. AR at 5 27. 6 At the second step, because the ALJ did not find any evidence of 7 malingering, the ALJ was required to provide clear and convincing reasons for 8 discounting plaintiff s credibility. The ALJ provided three reasons for discounting 9 plaintiff s credibility: (1) plaintiff lacked objective medical evidence to 10 substantiate his claims and the available objective medical evidence contradicted 11 his claims; (2) the treatment plaintiff received was inconsistent with the alleged 12 degree of impairment; and (3) plaintiff s daily activities were inconsistent with the 13 alleged degree of pain. Id. at 27. 14 A. The ALJ Gave Clear and Convincing Reasons for Lack of Objective 15 Medical Evidence to Support Plaintiff s Claims 16 The first ground provided by the ALJ for finding plaintiff less credible was 17 the lack of objective medical evidence to substantiate plaintiff s claims and the 18 inconsistencies between the available objective evidence and the claims. Id. at 27. 19 An ALJ may not reject a claimant s subjective complaints based solely on a lack 20 of objective medical evidence to fully corroborate the alleged severity of pain, 21 but it may be one factor used to evaluate credibility. Bunnell, 947 F.2d at 345; see 22 also Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). 23 Here, plaintiff claimed at the hearing before the ALJ that he stopped 24 working in 2007 because of right knee pain and became bedridden for three 25 weeks. AR at 53-55. At that time, plaintiff was suffering from elbow fracture, 26 which he had sustained in early 2007. Id. at 46, 55. Plaintiff also testified that he 27 suffered from persistent back problems. Id. at 59-61. Regarding his functional 28 6 1 capacity, plaintiff claimed he could sit for 20-30 minutes without changing 2 positions, stand 10-15 minutes at one time, and walk about two to three blocks. 3 Id. at 61-62. Plaintiff testified that his most comfortable position was lying down. 4 Id. at 62-63. 5 In a Function Report filed with the SSA on February 11, 2009, plaintiff 6 claimed that he wakes up much of the night due to back, hip, and leg pain and lies 7 down all day to sleep away the pain. Id. at 153. Plaintiff indicated further that 8 due to pain he experienced great difficulties with: (1) putting on pants, shoes, and 9 socks, and getting into the tub to bathe; (2) shaving at the sink; (3) using the toilet; 10 (4) making meals; (5) housework; (6) driving more than 30 minutes. Id. at 154-56. 11 Medical examinations between 2007 and 2010 revealed that plaintiff 12 suffered from a meniscus tear in his right knee, mild to moderate degenerative 13 changes in his left knee, mild to severe degenerative disc disease in his lumbar 14 region, and an increase in the severity of his gout in his right elbow and left knee. 15 Id. at 25, 28, 46, 51, 55-57, 60, 125, 139, 142-43, 164-67, 223-31, 258-59, 275, 16 282-83, 288, 303, 319-320. 17 Despite the medical findings and plaintiff s complaints that indicated that 18 plaintiff was at one point more significantly limited in his functional capacity, the 19 ALJ found plaintiff s claims of limitations amounting to a disability were not 20 supported by objective medical evidence. Id. at 27. See Rollins, 261 F.3d at 857 21 (lack of corroborative objective medicine may be one factor in evaluating 22 credibility). In discounting plaintiff s credibility, the ALJ took into strong 23 consideration the opinions of Kambiz Hannani, M.D., a consultative examining 24 physician, and William Newman, M.D., a medical expert. 25 First, the ALJ noted that Dr. Hannani, after conducting a complete 26 orthopedic examination in 2008, found plaintiff had normal gait, normal ranges of 27 motion in the cervical region, upper extremities, and lower extremities, and normal 28 7 1 neurological examination. Id. at 25, 241-43. The ALJ did note that Dr. Hannani 2 had observed a reduced range of motion in plaintiff s back and severely positive 3 leg-raising tests. Id. The ALJ then included Dr. Hannani s conclusion that 4 plaintiff had right lower extremity radiculopathy, but could still lift and carry 5 twenty pounds occasionally and ten pounds frequently, stand or walk for six hours 6 in an eight-hour workday, and sit without limitations. Id. at 25, 243. 7 Second, the ALJ referenced the RFC assessment report filed by state agency 8 physicians. The ALJ noted that a Dr. Jaituni, a medical consultant working for a 9 state agency, found plaintiff to be limited to a reduced range of light work in 10 January 2009. Id. at 26, 244-48. The ALJ also noted that I.J. Newton, another 11 state agency physician, affirmed the initial assessment for a reduce range of light 12 work. Id. at 26, 253-55. 13 Third, the ALJ considered Dr. Newman s opinions. After reviewing the 14 medical records and submitted statements in response to interrogatories sent to 15 experts by the ALJ, Dr. Newman found in April 2010 that plaintiff s complaints 16 in general [were] reasonable, but Dr. Newman found some of the conditions 17 causing plaintiff s symptoms gout and obesity to be amenable to treatment. Id. 18 at 23-24, 183-84. The ALJ then noted Dr. Newman s functional capacity 19 determination that plaintiff could: stand and walk four hours in an eight-hour 20 workday; sit for six hours in an eight-hour workday; lift and carry twenty-five 21 pounds occasionally and ten pounds frequently; and occasionally stoop, kneel, 22 crouch, and crawl. Id. at 23, 24, 185. The ALJ also noted Dr. Newman s May 23 2010 assessment, after reviewing a more recent MRI, that plaintiff was limited to 24 sedentary work mainly due to spinal stenosis, which, if severe enough, would 25 require corrective surgery. Id. at 26, 328. 26 After considering these RFC assessments and the results of x-rays, MRIs, 27 and evidence of other examinations and diagnoses in the record, the ALJ 28 8 1 concluded that plaintiff was limited to standing and walking for up to six hours in 2 an eight-hour workday, placing him in the light exertional range. Id. at 25. 3 Though plaintiff was at one time, more significantly limited in standing and 4 walking, the ALJ observed this limitation did not persist for twelve months of 5 longer and his overall condition had improved by the time he was examined by 6 Dr. Newman. Id. From the absence of surgery recommendation for spinal 7 stenosis, the ALJ determined in the end that Dr. Newman s RFC assessment of 8 sedentary work was not warranted and concluded that plaintiff was capable of 9 performing light work, that is, plaintiff could: lift up to twenty-five pounds 10 occasionally and ten pounds frequently; stand and walk, with normal breaks, for 11 up to six hours, cumulatively; sit, with normal breaks, for up to six hours, 12 cumulatively, in an eight-hour workday; occasionally bend, stoop, kneel, crawl, 13 and climb, but never use ladders, ropes, or scaffolds. Id. at 24-28. See 14 Tommasetti, 533 F.3d at 1041-1042 (only the ALJ is the final arbiter with respect 15 to resolving ambiguities in the medical evidence). 16 The court finds the ALJ presented clear and convincing reasons to discount 17 plaintiff s claims of pain and limitations and to determine that plaintiff s claims 18 lack support from objective medical evidence. The ALJ properly acknowledged 19 the medical evidence for plaintiff s conditions of ill-being, but the ALJ provided 20 clear and convincing reasons, based on objective medical evidence and opinions, 21 that plaintiff s subject complaints of pain and impairment should be discounted. 22 See AR at 23, 24-28. 23 B. The ALJ Gave a Clear and Convincing Reason When He Explained 24 That the Conservative Treatment Plaintiff Received Was Inconsistent 25 With Plaintiff s Claims 26 The ALJ s second ground for the adverse credibility finding conservative 27 treatment was similarly clear and convincing. Id. at 41-42; see Parra v. Astrue, 28 9 1 481 F.3d 742, 751 (9th Cir. 2007) ( [E]vidence of conservative treatment is 2 sufficient to discount a claimant s testimony regarding severity of an 3 impairment. ); Tommasetti, 533 F.3d at 1039 (failure to follow a prescribed course 4 of treatment weighs against a claimant s credibility). With regard to plaintiff s 5 treatment plan, the ALJ noted plaintiff was the subject of propholactic [sic] 6 limitations during periods of conservative treatment until plaintiff s overall 7 condition . . . improved by the time he was examined by Dr. Hannani. AR at 25. 8 The ALJ also noted Dr. Newman s assessment of plaintiff s spinal stenosis that 9 if plaintiff s symptoms were severe enough, corrective surgery (laminectomy) 10 would have been considered by the neurosurgeon. Id. at 26, 328. Apparently, 11 the ALJ observed, it was not considered or recommended by a neurosurgeon. 12 Id. at 26. Plaintiff s conservative treatment that the ALJ identified in the opinion 13 is another clear and convincing reason for discounting plaintiff's claims. See 14 Parra, 481 F.3d at 750-751(conservative treatment was sufficient to discredit 15 testimony); Tommasetti, 533 F.3d at 1039 (conservative treatment may be a clear 16 and convincing reason for discounting a claimant s credibility). 17 The record further supports the ALJ s conclusion that plaintiff received 18 conservative treatment. After going through condroplasty and partial lateral 19 meniscectomy to address his right knee pain, which led to marked improvement, 20 plaintiff s treatment consisted primarily of medication and physical therapy, 21 without any further surgical interventions. Id. at 25, 53, 56, 57, 240, 273, 274, 22 277, 278, 280, 285, 287, 292, 293-94, 296-99, 308. See Tommasetti 533 F.3d at 23 1040 (describing physical therapy and anti-inflammatory medication as 24 conservative treatment). Plaintiff testified at his hearing that he was only taking 25 Ibuprofen, Darvocet, and Soma to manage pain all of which are considered to be 26 part of conservative treatment. AR at 53, 56, 61. See O Neal v. Barnhart, 2006 27 WL 988253, at *14 (C.D. Cal. Apr. 13, 2006) (considering Ibuprofen and 28 10 1 Darvocet to be conservative pain management measures); Esparza v. Astrue, 2011 2 WL 5037049, at *6 (C.D. Cal. Oct. 24, 2011) (considering Soma to be 3 conservative treatment). 4 Accordingly, the court finds that by citing to the conservative treatment 5 plaintiff received, the ALJ gave an additional clear and convincing reason to 6 discount plaintiff s claims. 7 C. The ALJ Gave a Clear and Convincing Reason When He Showed That 8 Plaintiff s Daily Activities Were Not Consistent With the Alleged 9 Degree of Pain and Impairment 10 The third ground for an adverse credibility finding that plaintiff s daily 11 activities were inconsistent with the severity of his pain and impairment was also 12 clear and convincing. Id. at 27. See Morgan v. Comm r, 169 F.3d 595, 600 (9th 13 Cir. 1999) (a plaintiff s ability to spend a substantial part of his day engaged in 14 pursuits involving the performance of physical functions that are transferable to a 15 work setting may be sufficient to discredit him); Osenbrock v. Apfel, 240 F.3d 16 1157, 1165-67 (9th Cir. 2001) (an ALJ may discredit a plaintiff s testimony based 17 on the plaintiff s self-limited activities and lack of motivation). A plaintiff does 18 not need to be utterly incapacitated, Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 19 1989), and the mere fact a [plaintiff] has carried on certain daily activities, such 20 as grocery shopping, driving a car, or limited walking for exercise, does not in any 21 way detract from her credibility as to her overall disability. Vertigan v. Halter, 22 260 F.3d 1044, 1050 (9th Cir. 2001). 23 Here, however, despite plaintiff s claim to be severely limited in his daily 24 activities, the ALJ found evidence that plaintiff could, when motivated, perform 25 many daily activities. AR at 27. Plaintiff claimed it was difficult for him to drive 26 due to severe pain, but he testified he did drive when necessary, and that he did 27 so about once a day. Id. at 58, 156. Plaintiff claimed he was capable of preparing 28 11 1 a small meal for himself, though other members of his household usually do it if 2 they are home. Id. at 27, 57-58. Plaintiff also indicated in a Function Report that 3 he could prepare meals for himself, if he had to. Id. at 155. Though plaintiff 4 claimed to spend most days in bed, he admitted he went out to restaurants and 5 went shopping with his wife. Id. at 27, 58-59. While the ALJ recognized that 6 [t]he ability to engage in some normal daily activities does not prove that one is 7 able to perform competitive work on a regular and continuous basis, he opined 8 that plaintiff s activities suggest that (1) plaintiff has better physical capacities 9 than he has stated in the testimony and written statements, and (2) plaintiff has 10 not been completely frank, making the ALJ cautious about fully accepting the 11 claims advanced. Id. at 27. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 12 2012) ( ALJ may consider inconsistencies either in the claimant s testimony or 13 between the testimony and the claimant s conduct. ). The court finds this third 14 factor provided by the ALJ is a clear and convincing reason for discounting 15 plaintiff s claims. 16 The three factors considered by the ALJ in evaluating plaintiff s subjective 17 complaints of pain lack of objective evidence, conservative treatment, and 18 activities of daily living were valid, and the ALJ s explanations for his 19 credibility determination were clear and convincing because the ALJ set forth 20 findings sufficiently specific to permit the court to conclude that the ALJ did not 21 arbitrarily discredit claimant s testimony. Thomas v. Barnhart, 278 F.3d 947, 22 958 (9th Cir. 2002) (citing Bunnell, 947 F.2d at 345-46 (9th Cir. 1991)). 23 Accordingly, this court finds the ALJ properly discounted plaintiff s subjective 24 complaints. 25 // 26 // 27 // 28 // 12 1 V. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 5 the complaint with prejudice. 6 7 8 DATED: April 15, 2013 9 10 SHERI PYM United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.