Samuel Espinoza v. Michael J Astrue, No. 2:2013cv00357 - Document 19 (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 SAMUEL ESPINOZA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY,1 ) ) Defendant. ) ___________________________________) NO. CV 13-357-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on January 23, 2013, seeking review 21 of the Commissioner s denial of benefits. The parties filed a consent 22 to proceed before a United States Magistrate Judge on March 5, 2013. 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 July 12, 2013. 2 Defendant filed a motion for summary judgment on August 2, 2013. The 3 Court has taken both motions under submission without oral argument. 4 See L.R. 7-15; Order, filed January 28, 2013. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 Plaintiff asserted disability since November 26, 2008, based 9 primarily on alleged back problems (Administrative Record ( A.R. ) 53- 10 65, 188-95). The Administrative Law Judge ( ALJ ) examined the record 11 and heard testimony from Plaintiff, a medical expert and a vocational 12 expert (A.R. 18-252, 258-462). 13 diabetes mellitus, high cholesterol, and degenerative disc disease of 14 the lumbar spine, but retains the residual functional capacity to 15 perform a limited range of medium work (A.R. 26-34). 16 with the testimony of the vocational expert, the ALJ found that a 17 person so limited could perform Plaintiff s past relevant work as a 18 cloth beamer, as well as other jobs existing in significant numbers 19 (A.R. 35-37; see A.R. 94-108). 20 additional evidence, but denied review (A.R. 1-6). The ALJ found Plaintiff has severe In accordance The Appeals Council considered 21 22 STANDARD OF REVIEW 23 24 Under 42 U.S.C. section 405(g), this Court reviews the 25 Administration s decision to determine if: 26 findings are supported by substantial evidence; and (2) the 27 Administration used proper legal standards. 28 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 2 (1) the Administration s See Carmickle v. 1 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is such 2 relevant evidence as a reasonable mind might accept as adequate to 3 support a conclusion. 4 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 5 F.3d 1063, 1067 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 6 7 Where, as here, the Appeals Council considered additional 8 material but denied review, the additional material becomes part of 9 the Administrative Record for purposes of the Court s analysis. See 10 Brewes v. Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012) ( [W]hen 11 the Appeals Council considers new evidence in deciding whether to 12 review a decision of the ALJ, that evidence becomes part of the 13 administrative record, which the district court must consider when 14 reviewing the Commissioner s final decision for substantial 15 evidence. ; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 16 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1231 (2011) 17 (courts may consider evidence presented for the first time to the 18 Appeals Council to determine whether, in light of the record as a 19 whole, the ALJ s decision was supported by substantial evidence and 20 was free of legal error ); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th 21 Cir. 1993) ( the Appeals Council considered this information and it 22 became part of the record we are required to review as a whole ); see 23 generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 24 25 DISCUSSION 26 27 28 After consideration of the record as a whole, Defendant s motion is granted and Plaintiff s motion is denied. 3 The Administration s 1 findings are supported by substantial evidence and are free from 2 material2 legal error. 3 unavailing.3 Plaintiff s contrary arguments are 4 5 I. 6 The ALJ Did Not Materially Err in Evaluating Plaintiff s Credibility. 7 8 9 Although Plaintiff testified to subjective symptomatology of allegedly disabling severity, the ALJ found this testimony less than 10 fully credible (A.R. 32, 53-65). Contrary to Plaintiff s arguments, 11 the ALJ did not thereby materially err. 12 13 An ALJ s assessment of a claimant s credibility is entitled to 14 great weight. Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 15 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 16 discounting of a claimant s testimony regarding subjective symptoms 17 must be supported by specific, cogent findings. 18 81 F.3d 821, 834 (9th Cir. 1995); see also Berry v. Astrue, 622 F.3d 19 1228, 1234 (9th Cir. 2010) (reaffirming same); but see Smolen v. 20 Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) (indicating that ALJ 21 must offer specific, clear and convincing reasons to reject a 22 /// The See Lester v. Chater, 23 24 25 26 27 28 2 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). 3 The Court has considered all of Plaintiff s arguments and has found those arguments unpersuasive. The Court discusses Plaintiff s principal arguments herein. 4 1 claimant s testimony where there is no evidence of malingering).4 2 discussed below, the ALJ stated sufficient reasons for deeming 3 Plaintiff s testimony less than fully credible. As 4 5 The ALJ properly cited as a factor undercutting Plaintiff s 6 credibility the fact that, although Plaintiff had claimed pain-related 7 disability beginning in 2008, the medications Plaintiff took for pain 8 prior to Plaintiff s 2010 back surgery consisted primarily if not 9 exclusively of relatively mild analgesics (Ibuprofen and Naproxen) 10 (A.R 31-33). A claimant s allegations of disabling pain may be 11 discredited by evidence of minimal medical treatment and/or the use of 12 mild pain medications. 13 Cir. 1999); Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989); 14 Williams v. Bowen, 790 F.2d 713, 715 (8th Cir. 1986). See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th 15 16 The ALJ also observed that Plaintiff has appeared to exaggerate 17 his alleged impairments or limitations. Plaintiff claimed conditions, 18 such as alleged right shoulder problems and alleged weakness in the 19 20 21 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. The Court observes, however, that the ALJ did cite evidence of malingering (A.R. 34 ( Dr. Axline also noted the claimant exhibited positive [sic] a Waddell sign during examination; an indicator of symptom exaggeration ); see also A.R. 85-88 (Dr. Axline s testimony regarding evidence of Plaintiff s malingering )). 5 1 lower extremities, having no basis in the medical evidence (A.R. 32- 2 33). 3 adequate reason for rejecting the claimant's credibility. 4 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); Bickell v. 5 Astrue, 343 Fed. App'x 275, 277-78 (9th Cir. 2009); see also Rollins 6 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (although a claimant s 7 credibility cannot be rejected on the sole ground that it is not 8 fully corroborated by objective medical evidence, the medical evidence 9 is still a relevant factor. . . . ). A claimant's demonstrated tendency to exaggerate can furnish an See, e.g., 10 11 The ALJ also properly cited Plaintiff s unexplained insufficient 12 compliance with diabetic medication, diet or recommended exercise as 13 a factor adversely affecting Plaintiff s credibility (A.R. 33). 14 Molina v. Astrue, 674 F.3d at 1112 ( ALJ may consider . . . 15 unexplained or inadequately explained failure to seek treatment or to 16 follow a prescribed course of treatment in evaluating the claimant s 17 credibility). See 18 19 The ALJ also observed that Plaintiff s allegations of disabling 20 pain were inconsistent with Plaintiff s statements acknowledging 21 improvement, as well as with Plaintiff s admissions of his abilities 22 (A.R. 32-33). 23 reported improvements in his condition (A.R. 355, 397, 401, 404). 24 Further, Plaintiff testified he was able to walk fast and run before 25 his 2010 surgery and that his condition improved a little after 26 surgery (although Plaintiff also inconsistently testified that his 27 condition worsened after surgery) (A.R. 53, 63). 28 inconsistent statements can adversely affect the claimant s Treatment notes reflect that Plaintiff frequently 6 A claimant s 1 credibility. See Molina v. Astrue, 674 F.3d at 1112. In addition, a 2 claimant s concession regarding his or her functional abilities may 3 constitute substantial evidence that the claimant s impairments are 4 not disabling. 5 1987). See, e.g. Ray v. Bowen, 813 F.2d 914, 917 (9th Cir. 6 7 Thus, the ALJ stated sufficient reasons to allow this Court to 8 conclude that the ALJ discounted Plaintiff s credibility on 9 permissible grounds. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th 10 Cir. 2004). The Court therefore defers to the ALJ s credibility 11 determination. 12 Cir. 2007) (court will defer to ALJ s credibility determination when 13 the proper process is used and proper reasons for the decision are 14 provided); accord Flaten v. Secretary of Health & Human Services, 44 15 F.3d 1453, 1464 (9th Cir. 1995).5 See Lasich v. Astrue, 252 Fed. App x 823, 825 (9th 16 17 II. The ALJ Did Not Materially Err With Respect to the Opinions of 18 Dr. Silbart, a Worker s Compensation Examining Physician, or Dr. 19 Tepper, a Worker s Compensation Treating Physician. 20 21 Plaintiff argues that the opinions of Dr. Silbart and Dr. Tepper 22 that Plaintiff was temporarily totally disabled directly conflicted 23 with the findings of the ALJ (Plaintiff s Motion at 4). No necessary 24 25 26 27 28 5 To the extent any of the ALJ s specific credibility findings were not supported by substantial evidence or otherwise were improper, such error was harmless. See Carmickle v. Commissioner, 533 F.3d at 1163 (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). 7 1 conflict existed. To be entitled to benefits, Plaintiff must satisfy 2 a durational requirement of 12 continuous months of disability. 3 Barnhart v. Walton, 535 U.S. 212, 218-25 (2002); Krumpelman v. 4 Heckler, 767 F.2d 586, 589 (9th Cir. 1985), cert. denied, 475 U.S. 5 1025 (1986). 6 few months time to attain a level permitting the performance of work 7 cannot meet this durational requirement. 8 Commissioner, 439 F.3d 1001, 1006 (9th Cir. 2006) (impairments that 9 can be controlled effectively with treatment are not disabling); See Impairments which, with treatment, would improve over a Id.; see also Warre v. 10 Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) ( a remediable 11 impairment is not disabling ). 12 ALJ s conclusion that, despite severe impairments, Plaintiff never 13 lost or could be expected to lose for a continuous 12-month period the 14 ability to perform a limited range of medium work. Substantial evidence supports the 15 16 It is also worth noting that disability in worker s 17 compensation parlance has a different meaning than disability in 18 social security law. 19 individual s ability or inability to return to the individual s 20 previous job, whereas social security disability requires an 21 inability to perform any substantial gainful activity. 22 Maldonado v. Astrue, 2010 WL 2557229, *3 (C.D. Cal. June 17, 2010) 23 ( The determination that Plaintiff was temporarily totally disabled 24 under state worker s compensation rules indicated that she could not 25 return to her previous job as an assembler, not that she was precluded 26 from all substantial gainful activity ). 27 substantial evidence supported the conclusion Plaintiff could perform 28 other jobs, as well as Plaintiff s past relevant work as a cloth Worker s compensation focuses on the 8 See, e.g., In the present case, 1 beamer. 2 3 Thus, there was no necessary inconsistency between the ALJ s 4 conclusions and the cited opinions of Dr. Silbart or Dr. Tepper. To 5 the extent any inconsistency did exist, the ALJ would have been 6 required to state specific, legitimate reasons based on substantial 7 evidence in the record for rejecting Dr. Tepper s opinion. 8 Valentine v. Commissioner, 574 F.3d 685, 692 (9th Cir. 2009) (an ALJ 9 must provide specific, legitimate reasons based on substantial See, e.g., 10 evidence in the record for rejecting a treating physician s 11 contradicted opinion). 12 reasons for giving Dr. Tepper s opinions only minimal weight. 13 addition to pointing out the limitations of Dr. Tepper s worker s 14 compensation-related opinions, the ALJ stated that Dr. Tepper claimed 15 Plaintiff had a restricted range of motion even though Dr. Castillo, 16 another of Plaintiff s treating physicians, consistently indicated 17 normal range of motion on examination of Plaintiff s back (A.R. 34; 18 see also A.R. 323, 329, 333, 343 (Dr. Castillo s notes)). 19 Inconsistencies between a treating physician s opinion and medical 20 notes properly can support the rejection of the treating physician s 21 opinion. 22 1989). Here, the ALJ stated specific, legitimate In See, e.g., Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir. 23 24 III. The ALJ Did Not Materially Err in Evaluating The Listings. 25 26 Plaintiff argues the ALJ erred in failing to find that 27 Plaintiff s impairments met or equaled Listing 1.04A of Appendix 1 to 28 Subpart P of Part 404 of 20 C.F.R. (Plaintiff s Motion at 5-6). 9 No 1 material error occurred. 2 3 Plaintiff has the burden of demonstrating disability under the 4 Listings. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. 5 denied, 517 U.S. 1122 (1996); see Sullivan v. Zebley, 493 U.S. 521, 6 530-31 (1990) (burden is on the claimant to show that his or her 7 impairment meets all of the specified medical criteria for a Listing, 8 or present medical findings equal in severity to all the criteria for 9 the one most similar listed impairment); Johnson v. Barnhart, 390 F.3d 10 1067, 1070 (8th Cir. 2004) ( The burden of proof is on the plaintiff 11 to establish that his or her impairment meets or equals a listing. ). 12 13 In the present case, substantial evidence supports the conclusion 14 Plaintiff did not meet or equal Listing 1.04A (or any other Listing). 15 The medical expert testified there was insufficient evidence from 16 which to conclude Plaintiff met or equaled the Listings (A.R. 73-74, 17 82-88). 18 complaints (or subjective responses to testing) in order to prove he 19 met or equaled Listings criteria, the ALJ s adverse credibility 20 determination supports the ALJ s contrary conclusion. 21 positive straight-leg raising test (sitting and supine) constitutes 22 one of the criteria for Listing 1.04A, and there exists evidence of 23 Plaintiff s exaggeration on such testing (A.R. 85-87). 24 Listing 1.04A requires nerve root compression characterized by neuro- 25 anatomic distribution of pain . . . accompanied by sensory or reflex 26 loss. 27 64). 28 /// To the extent Plaintiff relies on his own subjective In particular, Furthermore, Dr. Tepper reported the absence of these criteria (A.R. 463- 10 1 Although the Listings related evidence (as well as the evidence 2 relevant to later steps in the disability analysis) may be in 3 conflict, it is the prerogative of the Administration to resolve 4 conflicts in the record. 5 Cir. 2001). 6 interpretation, the Court must uphold the administrative decision. 7 See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); accord 8 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. 9 Chater, 108 F.3d 978, 980 (9th Cir. 1997). See Lewis v. Apfel, 236 F.3d 503, 509 (9th When evidence is susceptible to more than one rational The Court will uphold the 10 Administration s rational interpretation of the evidence in the 11 present case notwithstanding any conflicts in the record. 12 13 14 IV. The ALJ Did Not Materially Err in Finding Non-Severe Plaintiff s Alleged Left Shoulder Impairment and Alleged Vision Impairment. 15 16 Plaintiff argues that the ALJ should have found severe 17 Plaintiff s alleged left shoulder impairment and alleged vision 18 impairment (Plaintiff s Motion at 4-5). 19 occurred. Again, no material error 20 21 In the hearing before the ALJ, Plaintiff denied any problem with 22 his left shoulder (A.R. 58). Plaintiff did report blurry vision, but 23 the medical expert believed any vision problem was attributable not to 24 diabetes but to presbyopia, i.e. the correctable far-sightedness 25 commonly progressive with age (A.R. 73-75). 26 27 28 Moreover, any error in deeming these alleged impairments nonsevere was harmless. The ALJ expressly considered the entire record, 11 1 including any evidence of these alleged impairments (A.R. 25, 26). 2 See Social Security Ruling 96-8p ( In assessing RFC, the adjudicator 3 must consider limitations and restrictions imposed by all of an 4 individual s impairments, even those that are not severe ); Burch v. 5 Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005) (error in failing to 6 find an impairment severe did not prejudice the claimant where the 7 Administration found other impairments severe and considered the 8 effects of the non-severe impairment when analyzing residual 9 functional capacity); see generally McLeod v. Astrue, 640 F.3d 881, 10 886-89 (9th Cir. 2011) (claimant bears the burden of showing a 11 substantial likelihood of prejudice from the Administration s errors). 12 The record contains no persuasive proof that any alleged impairment 13 deemed non-severe materially affects Plaintiff s residual functional 14 capacity. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 12 1 CONCLUSION 2 3 For all of the reasons discussed herein, Plaintiff s motion for 4 summary judgment is denied and Defendant s motion for summary judgment 5 is granted.6 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: August 13, 2013. 10 11 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 The Court has considered and rejected each of Plaintiff s arguments. Neither Plaintiff s arguments nor the circumstances of this case show any substantial likelihood of prejudice resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d at 888 (discussing the standards applicable to evaluating prejudice). 13

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