Winifred Nelson v. Michael J Astrue, No. 2:2012cv04552 - Document 20 (C.D. Cal. 2013)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 1 [SEE ORDER FOR FURTHER DETAILS (gr)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 WINIFRED NELSON, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-04552-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge s ( ALJ ) Residual 1 Functional Capacity ( RFC ) assessment is supported by 2 substantial evidence; and 3 2. Whether the ALJ s credibility determination is supported by 4 5 substantial evidence. (JS at 4.) 6 7 This Memorandum Opinion will constitute the Court s findings of 8 fact and conclusions of law. After reviewing the matter, the Court 9 concludes that the decision of the Commissioner must be affirmed. 10 11 I 12 THE ALJ DID NOT ERR IN ASSESSING PLAINTIFF S 13 RESIDUAL FUNCTIONAL CAPACITY 14 In Plaintiff s first issue, she contends that the ALJ erred in 15 assessing her RFC, which he determined included the ability to perform 16 light work with certain exertional and non-exertional restrictions. 17 (AR 17.) 18 sequential evaluation process (AR 14-15), and determined at Step Two 19 that Plaintiff s severe impairments are Type II diabetes mellitus, 20 sleep apnea, obesity and arthritis. (AR 15.) In reaching this conclusion, the ALJ followed the five-step 21 Plaintiff contends that there was inadequate consideration given 22 to degenerative changes in her lumbar spine; shortness of breath on 23 exertion; and whether her obesity has contributed to her back pain and 24 shortness of breath. (JS at 4.) 25 Plaintiff 26 contends that he failed to properly assess the effects of obesity on 27 her ability to work. (Id.) 28 has Plaintiff obesity notes as that a Conceding that the ALJ found severe there 2 is impairment, no longer she a nevertheless Listing Level 1 Impairment for obesity. Rather, the administrative requirements are 2 set out in Social Security Ruling ( SSR ) 02-01p, cited at JS 5. 3 Essentially, SSR 02-01p notes that obesity can cause limitation of 4 function in certain cases, and an assessment should be made of the 5 effect of obesity upon an individual s ability to perform physical 6 activities. 7 Without question, the ALJ acknowledged Plaintiff s obesity, not 8 only at Step Two, but also by interpreting her medical records which 9 demonstrate that obesity contributed to her back pain. (AR 16, citing 10 Plaintiff s treatment records from Kaiser, at AR 166-196.) 11 particular, with regard to her back pain, the ALJ s assessment was 12 that Plaintiff has degenerative changes in the lumbar area without 13 central 14 Plaintiff s back impairment has not been considered significantly 15 severe as to justify an MRI. (AR 16.) 16 cite any Ninth Circuit authority, the Court has reviewed the leading 17 cases, Celaya v. Halter, 332 F.3d 1177 (9th Cir. 2003), and Burch v. 18 Barnhart, 400 F.3d 676 (9th Cir. 2005). The facts of Plaintiff s case 19 are very close to those cited by the Circuit s Opinion in Burch. 20 appellate court noted that, Here, the record does not indicate that 21 Burch s obesity exacerbated her other impairments (other than possibly 22 her back pain). (Id. at 682.) 23 that Plaintiff s obesity may have contributed to or exacerbated her 24 existing 25 treatments records indicate that Plaintiff was prescribed spine- 26 oriented exercises, as reflected in a Progress Note of October 21, 27 2008. (AR 171.) 28 pool exercise and moves boxes at her mother s house. or neural back pain foraminal as shown stenosis, and further In noted that Although the parties do not The Similarly, the ALJ acknowledged here in her treatment records. Those At AR 171, it was noted that Plaintiff reports doing 3 She was 1 instructed on a home exercise program which included lat pulls, scap 2 pinches, 3 isometrics while seated, ball exercises while seated, leg lifts, and 4 pelvic tilt and circles. (AR 172.) 5 shoulder Reports of a circles, physical seated low examination back stretch, contained in abdominal Plaintiff s 6 treatment records indicate that she is obese but in no acute distress; 7 has normal gait and is able to walk on her toes and heels; that her 8 lower spine range of motion is slightly decreased in flexion; negative 9 straight leg raising tests; negative femoral stretch; negative Patrick 10 sign; negative S-1 compression; negative tenderness; 11 no spasm; sensation normal; and motor strength 5/5. (AR 178.) 12 The ALJ also gave significant weight (AR 17) to the conclusions 13 of two State Agency physicians who reviewed all of these medical 14 records, who both concluded that Plaintiff could perform a range of 15 light work. (AR 201-02, 553-54.) 16 State Agency physicians opinions may be accorded significant weight. 17 See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). As non-examining physicians, these 18 As against all of this, Plaintiff makes primarily conclusory 19 arguments that her obesity has contributed not only to her back pain 20 but also to her shortness of breath. (JS at 4.) 21 not only documented by Plaintiff s medical records, but was fully 22 considered by the ALJ, the latter does not appear to be a medically 23 supported opinion which can be found anywhere in Plaintiff s treatment 24 records. Plaintiff does not contend that she has met equivalence to a 25 Listing Level Impairment at Step Three. 26 noted, her claim is that the ALJ did not adequately address the 27 effects of her obesity on other documented medical conditions. 28 conclusion, however, is simply not supported by the ALJ s explicit 4 While the former is Instead, as the Court has That 1 evaluation of the record. Consequently, the Court finds no merit in 2 Plaintiff s first issue. 3 4 II 5 THE ALJ S CREDIBILITY DETERMINATION 6 IS SUPPORTED BY SUBSTANTIAL EVIDENCE 7 In Plaintiff s second issue, she contends the ALJ improperly 8 depreciated her credibility as to subjective symptoms. 9 the ALJ found that Plaintiff s statements are not entirely credible, 10 because her condition is stable; she had lost a significant amount of 11 weight by dieting; her daily activities are inconsistent with her 12 allegations; and she reported that her pain was better. (AR 17.) 13 Specifically, Plaintiff focuses on the effects of her sleep apnea, a condition 14 found to be severe 15 acknowledging that her condition is stable on a CPAP device, she 16 contends that she still suffers from significant limitations as a 17 result of this impairment (JS at 4, citing AR 265, 353, 527), but a 18 careful 19 limitations which are referenced occurred prior to Plaintiff using a 20 CPAP device. 21 indicated that Plaintiff slept for six hours while using the CPAP; 22 that her sleep was self-rated as deep; and that she rated her 23 alertness after using the CPAP as more. 24 would use the CPAP as a form of treatment. (AR 186.) 25 were obtained from a sleep study conducted two years later on February 26 25, 2009. (AR 529-30.) examination as of Step the Two by record the ALJ. indicates (AR that 15.) most While of the In a sleep study result dated October 16, 2007, it was She indicated that she Similar results 27 With regard to Plaintiff s daily activities, while she argues 28 that the ALJ cited an isolated reference to the fact that she moved 5 1 boxes at her mother s house, the record does reflect a much wider 2 range of normal activities of daily living, which include cooking, 3 cleaning her house, laundry, and helping her husband manage finances, 4 which are properly translatable into an ability to do light work with 5 the restrictions assessed by the ALJ. 6 The ALJ also noted that Plaintiff s treatment at Kaiser has been 7 conservative for her complaints. (AR 15.) As the Court has noted with 8 regard to the first issue, Plaintiff was prescribed exercises and was 9 further advised to lose weight, which she in fact did. As the ALJ 10 noted, at the time of the hearing, Plaintiff weighed less than when 11 she had been remunitively employed. 12 All in all, considering the well-established credibility 13 evaluation requirements (which the parties properly cite in the JS), 14 the Court cannot find that the ALJ s credibility determination was 15 erroneous. 16 17 18 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 19 20 21 DATED: March 15, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 6
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