Washington Reyes v. Michael J. Astrue, No. 2:2012cv03779 - Document 20 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 WASHINGTON REYES, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY,1 ) ) Defendant. ) ___________________________________) NO. CV 12-3779-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on May 7, 2012, seeking review of the 21 Commissioner s denial of benefits. The parties filed a consent to 22 proceed before a United States Magistrate Judge on June 14, 2012. 23 /// 24 /// 25 26 27 28 1 Carolyn W. Colvin, who became Acting Commissioner of Social Security as of February 14, 2013, is hereby substituted as Defendant in this matter. See Fed. R. Civ. P. 25(d)(1); 42 U.S.C. § 405(g). 1 Plaintiff filed a motion for summary judgment on December 22, 2 2012. Defendant filed a cross-motion for summary judgment on March 4, 3 2013. The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; Order, filed May 8, 2012. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 Plaintiff asserted disability since March 1, 2006, based on 9 alleged pain in his back and feet (Administrative Record ( A.R. ) 27, 10 136-43, 150). An Administrative Law Judge ( ALJ ) examined the record 11 and heard testimony from Plaintiff and a vocational expert (A.R. 37- 12 82). 13 14 The ALJ found Plaintiff has a severe lower back strain with 15 degenerative changes and burning foot syndrome (A.R. 29 (adopting 16 diagnoses at A.R. 250-51, 262, 305, 307)). 17 however, that Plaintiff retains the residual functional capacity to 18 perform the full range of medium work (A.R. 30, 32 (adopting 19 consultative examiner s opinion at A.R. 266)). 20 that, with this capacity, Plaintiff could still perform his past 21 relevant work (A.R. 32-33 (adopting vocational expert testimony at 22 A.R. 73-75)). 23 regarding the severity of his symptoms, to the extent any such 24 testimony was inconsistent with the residual functional capacity the 25 ALJ found to exist (A.R. 30-32). 26 not disabled (A.R. 33). 27 /// 28 /// The ALJ also found, The ALJ determined The ALJ deemed not credible Plaintiff s testimony Accordingly, the ALJ found Plaintiff The Appeals Council denied review (A.R. 1-3). 2 1 PLAINTIFF S CONTENTION 2 3 4 Plaintiff contends that the ALJ erred in finding Plaintiff s testimony not entirely credible. 5 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. section 405(g), this Court reviews the Administration s decision to determine if: (1) the Administration s 10 findings are supported by substantial evidence; and (2) the 11 Administration used correct legal standards. 12 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 13 499 F.3d 1071, 1074 (9th Cir. 2007). 14 relevant evidence as a reasonable mind might accept as adequate to 15 support a conclusion. 16 (1971) (citation and quotations omitted); see also Widmark v. 17 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 18 19 This Court may not affirm [the Administration s] decision simply 20 by isolating a specific quantum of supporting evidence, but must also 21 consider evidence that detracts from [the Administration s] 22 conclusion. 23 (citation and quotations omitted); see Lingenfelter v. Astrue, 504 24 F.3d 1028 (9th Cir. 2007) (same). 25 findings supported by substantial evidence, even though there may 26 exist other evidence supporting Plaintiff s claim. 27 Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 28 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971). Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) However, the Court cannot disturb 3 See Torske v. DISCUSSION 1 2 After consideration of the record as a whole, Defendant s motion 3 4 is granted and Plaintiff s motion is denied. The Administration s 5 findings are supported by substantial evidence and are free from 6 material2 legal error. Plaintiff s contrary contention is unavailing. 7 8 I. Substantial Evidence Supports the Conclusion Plaintiff Can Work. 9 10 Substantial evidence supports the ALJ s determination that 11 Plaintiff is not disabled. Dr. Ibrahim Yashruti, an examining 12 orthopedic surgeon, completed an Orthopedic Consultation of Plaintiff 13 dated July 25, 2008 (A.R. 263-66). 14 and bilateral foot pain (A.R. 263). 15 ray report of Plaintiff s lumbar spine from August 2007 showed 16 degenerative disease at the L5-S1 level (A.R. 263). 17 physical examination found no abnormalities other than tenderness on 18 palpation over the lumbosacral junction and right SI joint, and 19 tenderness on palpation of the feet. 20 lumbar spine was limited at 40 degrees flexion and 15 degrees 21 extension, but otherwise was full and painless. 22 Plaintiff s feet was also full and painless. 23 See A.R. 265-66. 24 examination as completely normal (A.R. 266). 25 that Plaintiff is capable of medium work and is able to kneel, squat, Plaintiff complained of low back Dr. Yashruti observed that an x- Dr. Yashruti s Range of motion for Plaintiff s Range of motion for Plaintiff has flat feet. Dr. Yashruti characterized [t]he rest of the Dr. Yashruti opined 26 2 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 1 crouch and crawl frequently (A.R. 266; see also 20 C.F.R. §§ 2 404.1567(c) and 416.967(c) (defining medium work)). 3 4 Dr. Yashruti s findings constitute substantial evidence 5 supporting the ALJ s decision. 6 1144, 1149 (9th Cir. 2001) (consulting examiner s opinion is 7 substantial evidence that can support an ALJ s finding of 8 nondisability); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 9 2007) (examining physician s independent clinical findings are 10 See Tonapetyan v. Halter, 242 F.3d substantial evidence). 11 12 The opinions of the non-examining State agency physicians provide 13 additional support for the ALJ s decision. Tonapetyan v. Halter, 242 14 F.3d at 1149 (non-examining physician s opinion may constitute 15 substantial evidence when opinion is consistent with independent 16 evidence of record);3 Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 17 1995) (same). 18 the record, including Dr. Yashruti s evaluation, and opined that 19 Plaintiff is capable of performing medium work. State agency physicians F. Wilson and D. Gray reviewed See A.R. 269-75. 20 21 The vocational expert testified that a person having the 22 limitations identified by the ALJ could perform Plaintiff s past 23 relevant work as a material handler (A.R. 73-75). 24 furnished substantial evidence that Plaintiff is not disabled. 25 Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1228 This testimony 26 27 28 3 The record contains no medical opinions regarding Plaintiff s alleged limitations, other than the opinions of Dr. Yashruti and the state agency physicians. 5 See 1 (9th Cir. 2009) (vocational expert opinion evidence is reliable to 2 support a finding that a claimant can work if hypothetical questioning 3 set[s] out all the limitations and restrictions of a particular 4 claimant ) (citation omitted); Hubble v. Astrue, 2012 WL 258406, at *2 5 (9th Cir. Jan. 30, 2012) (finding no error in ALJ s conclusion that 6 claimant was capable of performing her past relevant work as generally 7 performed in the national economy, based on a vocational expert s 8 answer to a hypothetical question presenting claimant s residual 9 functional capacity); see also 20 C.F.R. §§ 404.1560(b)(2), 10 416.960(b)(2); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 11 2005) ( A [vocational expert s] recognized expertise provides the 12 necessary foundation for his or her testimony. 13 foundation is required. ). Thus, no additional 14 15 II. 16 The ALJ Did Not Materially Err in Evaluating Plaintiff s Credibility. 17 18 An ALJ s assessment of a claimant s credibility is entitled to Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 19 great weight. 20 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 21 discounting of a claimant s testimony regarding subjective symptoms 22 must be supported by specific, cogent findings. 23 81 F.3d at 834; see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th 24 Cir. 2010) (reaffirming same); but see Smolen v. Chater, 80 F.3d 1273, 25 1282-84 (9th Cir. 1996) (indicating that ALJ must offer specific, 26 clear and convincing reasons to reject a claimant s testimony where 27 /// 28 6 The See Lester v. Chater, 1 there is no evidence of malingering).4 2 arguments, the ALJ stated sufficient reasons for deeming Plaintiff s 3 testimony less than fully credible. Contrary to Plaintiff s 4 5 Plaintiff testified that he stopped working due to pain in his 6 back and feet (A.R. 46-47, 56). Plaintiff said that for six or more 7 years he has had progressively worsening swelling, pain and burning in 8 his feet (A.R. 50-51). 9 supposedly obtained little relief from medication (A.R. 48-49). 10 when Plaintiff s doctor had wanted to administer injections for 11 Plaintiff s back pain, Plaintiff declined (A.R. 50). Plaintiff claimed his pain was constant and he Yet, 12 13 Plaintiff, who was using a cane his son bought for him, 14 estimated that he can walk 15-20 minutes without a cane, and can stand 15 for 10 minutes and sit for 20 minutes (A.R. 54). 16 can lift only five to eight pounds (A.R. 55). 17 /// 18 /// 19 /// 20 /// 21 /// Plaintiff said he 22 23 24 25 26 27 28 4 In the absence of an ALJ s reliance on evidence of malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Chaudhry v. Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Commissioner, 659 F.3d 1228, 1234 (9th Cir. 2011); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 7 1 The ALJ found Plaintiff s testimony less than entirely credible, (1) Plaintiff s conservative treatment,5 2 citing four reasons: 3 (2) lack of support in the objective medical record, (3) the extent of 4 Plaintiff s daily activities, and (4) inconsistencies between 5 Plaintiff s testimony and other information contained in the record 6 (A.R. 31-32). 7 alleged his pain became disabling as of March 2006, the first 8 treatment record concerning Plaintiff s back or feet bore a date in 9 August of 2007 (A.R. 31 (citing, inter alia, A.R. 262, 280 (radiology Specifically, the ALJ observed that although Plaintiff 10 reports for Plaintiff s lumbar spine)).6 11 that the medical record, which consists of only a few treatment notes, 12 lab reports, two normal nerve conduction studies, and xrays of 13 Plaintiff s back, suggests that Plaintiff s condition had been managed 14 with conservative care. 15 treatment); A.R. 249-62, 276-302, 305-12, 317 (medical records). 16 conservative course of treatment may discredit a claimant s 17 allegations of disabling symptoms. 18 750-51 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008); Meanel v. 19 Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (failure to request any 20 serious medical treatment for [claimant s] supposedly excruciating 21 pain was adequate reason to reject claimant s pain testimony); 22 Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (conservative 23 treatment can suggest a lower level of both pain and functional The ALJ further observed See A.R. 31 (discussing Plaintiff s limited See Parra v. Astrue, 481 F.3d 742, 24 25 5 26 27 Plaintiff testified that he did not have health insurance coverage, but was receiving treatment through a county program (A.R. 43). 6 28 A Podiatry records for Plaintiff s feet did not show any kind of treatment until December 2007 (A.R. 250). 8 1 limitation, justifying adverse credibility determination); see also 2 Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (failure to 3 seek medical treatment can justify an adverse credibility 4 determination); Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989) 5 (same). 6 7 The ALJ also noted that the objective medical evidence did not 8 support a level of symptomatology that would prevent Plaintiff from 9 working. Although a claimant s credibility cannot be rejected on the 10 sole ground that it is not fully corroborated by objective medical 11 evidence, the medical evidence is still a relevant factor. . . . 12 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 13 ALJ observed, the xrays of Plaintiff s lumbar spine showed 14 degenerative disc disease at L5-S1, but no evidence that the condition 15 was advanced. 16 (radiology reports). 17 280-81, 296-97. 18 consultative examination was essentially normal, revealing only 19 tenderness on palpation to the lumbar spine and feet, but no pain on 20 range of motion. Here, as the See A.R. 31 (ALJ s observation); A.R. 262, 302, 305 Nerve conduction studies were normal. See A.R. As discussed above, Plaintiff s orthopedic See A.R. 263-66. 21 22 The ALJ also cited the extent of Plaintiff s daily activities as 23 assertedly inconsistent with disabling pain (A.R. 31 (Plaintiff 24 spend[s] a substantial part of the day in activities involving the 25 performance of functions readily transferrable to competitive work )). 26 The extent of a claimant s daily activities can constitute clear and 27 convincing reasons for discounting the credibility of a claimant s 28 testimony that the claimant cannot work. 9 See Burch v. Barnhart, 400 1 F.3d at 680-81 (daily activities in caring for own personal needs, 2 cooking, cleaning, and shopping undermined claimant s credibility 3 since those skills could be transferred to the workplace); see also 4 Rollins v. Massanari, 261 F.3d at 857 (claimant s testimony regarding 5 daily domestic activities undermined the credibility of her pain- 6 related testimony). 7 he gets up, takes care of his own personal grooming, prepares coffee, 8 helps prepare meals, washes dishes, and drives a half mile to the 9 market three to four times a week where he shops for 15-20 minutes Here, Plaintiff testified that on a typical day 10 (A.R. 52-53, 55). Plaintiff also said he plays Bingo with his 11 sisters, watches television, and reads (A.R. 53). 12 activities7 arguably could contribute toward the ALJ s discounting of 13 Plaintiff s testimony concerning allegedly disabling pain. 14 Thune v. Astrue, 2012 WL 5990952, at *1 (9th Cir. Nov. 29, 2012) (ALJ 15 properly discredited pain allegations as contradicting claimant s 16 testimony that she gardened, cleaned, cooked, and ran errands); 17 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) 18 (claimant s normal activities of daily living, including cooking, 19 house cleaning, doing laundry, and helping her husband in managing 20 finances was sufficient explanation for rejecting claimant s 21 /// These daily See, e.g., 22 23 24 25 26 27 28 7 Plaintiff was not always consistent in reporting his daily activities. In an undated exertion questionnaire, Plaintiff reported that he does not do his own grocery shopping and does not clean his home (A.R. 178). Plaintiff explained that the house work he does do is very light and brief (A.R. 179). Similarly, in undated Disability Report Appeal forms, Plaintiff reported that he is unable to care for his lawn, home, go shopping for groceries, or exercise (A.R. 161), and supposedly is unable to even care for [his] personal hygiene w/out experiencing amount of pain (A.R. 168). 10 1 credibility).8 2 3 The ALJ also discounted Plaintiff s credibility based on 4 inconsistencies between Plaintiff s testimony and information in the 5 record concerning Plaintiff s English language abilities and job 6 history (A.R. 32). 7 write, speak or understand English despite having been in the United 8 States for 35 years (A.R. 43-44). 9 Plaintiff was given discharge instructions in English (A.R. 250-51, Plaintiff had testified that he could not read, Yet, medical records show that 10 253-54, 283-84; see also A.R. 291 (stating discharge language was 11 Spanish and English and Translator not needed ); but see A.R. 287-88 12 (stating discharge language was Spanish and reflecting the use of a 13 translator)). 14 the observations of medical examiners may properly impeach a A disparity between a claimant s representations and 15 8 16 17 18 19 20 21 22 23 24 25 26 27 28 It is difficult to reconcile certain Ninth Circuit opinions discussing when a claimant s daily activities properly may undermine the claimant s credibility. Compare StubbsDanielson v. Astrue (cited above) and Burch v. Barnhart (cited above) with Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) ( the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability. ) and Gallant v. Heckler, 753 F.2d 1450, 1453-55 (9th Cir. 1984) (fact that claimant could cook for himself and family members as well as wash dishes did not preclude a finding that claimant was disabled due to constant back and leg pain). Because of this difficulty, the Court in the present case elects not to rely on the ALJ s finding regarding Plaintiff s daily activities. Assuming arguendo that the ALJ s partial reliance on Plaintiff s daily activities was improper, the Court nevertheless upholds the ALJ s credibility determination. Under Carmickle v. Commissioner, 533 F.3d 1155, 1163 (9th Cir. 2008), the infirmity of one or two supporting reasons for an ALJ s credibility determination does not require overturning the determination if independently valid supporting reasons remain. Independently valid supporting reasons remain in the present case. 11 1 claimant s credibility. See, e.g., Copeland v. Bowen, 861 F.2d 536, 2 541 (9th Cir. 1988). 3 4 As to job history, Plaintiff indicated in a disability report 5 form that at one of his jobs he lifted 50 pounds regularly and 6 sometimes lifted up to 100 pounds (A.R. 152). 7 form, Plaintiff indicated that the same job had required the lifting 8 of only 10 pounds (A.R. 184, 187). 9 Plaintiff s counsel asked questions of Plaintiff to attempt to clarify 10 the job s requirements, as well as the issue of whether Plaintiff was 11 given any kind of accommodation in the job, but the job s lifting 12 requirements were not clarified and Plaintiff s answers suggested that 13 he had been given no accommodation. 14 inconsistency also can support the rejection of a claimant s 15 credibility. 16 credibility, an ALJ may engage in ordinary techniques of credibility 17 evaluation, such as considering claimant s reputation for truthfulness 18 and inconsistencies in claimant s testimony. ); see also Thomas v. 19 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (conflicting 20 information from claimant supported the rejection of the claimant s 21 credibility); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 22 (inconsistencies in claimant s various statements cited as a clear and 23 convincing reason for rejecting the claimant s testimony). Yet, in a subsequent During the hearing, the ALJ and See A.R. 57-61. This kind of See Burch v. Barnhart, 400 F.3d at 680 ( In determining 24 25 Thus, the ALJ stated sufficient reasons to allow this Court to 26 conclude that the ALJ discounted Plaintiff s credibility on 27 permissible grounds. 28 Cir. 2004). See Moisa v. Barnhart, 367 F.3d 882, 885 (9th The Court therefore defers to the ALJ s credibility 12 1 determination. See Lasich v. Astrue, 252 Fed. App x 823, 825 (9th 2 Cir. 2007) (court will defer to ALJ s credibility determination when 3 the proper process is used and proper reasons for the decision are 4 provided); accord Flaten v. Secretary of Health & Human Services, 44 5 F.3d 1453, 1464 (9th Cir. 1995). 6 7 CONCLUSION 8 9 For all of the foregoing reasons, Plaintiff s motion for summary 10 judgment is denied and Defendant s motion for summary judgment is 11 granted. 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: March 20, 2013. 16 17 18 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 13

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