Stacy Olley v. Michael J Astrue, No. 5:2008cv00018 - Document 18 (C.D. Cal. 2008)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Marc L. Goldman. The decision of the Social Security Commissioner is affirmed. (db)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 STACY OLLEY, 13 14 v. 15 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, MICHAEL J. ASTRUE, Commissioner of Social Security 16 Defendant. 17 Case No. EDCV 08-00018-MLG MEMORANDUM OPINION AND ORDER 18 19 I. Procedural and Factual History 20 Plaintiff Stacy Olley ( Plaintiff ) seeks judicial review of the 21 Commissioner s final decision denying her application for Supplemental 22 Security Income benefits ( SSI ). Plaintiff applied for SSI benefits 23 on June 18, 2004 (Joint Stipulation ( Joint Stip. ) at 2.) Plaintiff 24 alleges diabetes, disability 25 gastroesophageal beginning reflux January disease with 8, 2002 diarrhea, due and to status post 26 hysterectomy. (Joint Stip. at 2). 27 Plaintiff was born on January 15, 1965 and was 41 years old at 28 the time of the administrative hearing. (Administrative Record ( AR ) 1 at 17). She completed high school and one year of college. She has 2 no relevant work experience because she was a full-time homemaker. (AR 3 at 247). 4 the Plaintiff s application was denied at the initial stage of administrative process on 5 reconsideration on July 1, 2005. September 16, (AR at 12). 2004, and upon A de novo hearing was 6 held on October 11, 2006, before Administrative Law Judge ( ALJ ) 7 Mason D. Harrell, Jr. (AR at 203-230). Plaintiff, unrepresented by 8 counsel, testified at the hearing. (AR at 245-257, 259-260). Sandra 9 Fioretti testified as a vocational expert. (AR at 257-259). 10 On November 6, 2006, the ALJ issued an unfavorable decision, 11 denying SSI benefits. (AR at 12-19). The ALJ determined that Plaintiff 12 suffers from the severe impairments of diabetes, gastroesophageal 13 reflux disease with diarrhea, and status post hysterectomy. (AR at 14 14). The ALJ found that there was insufficient evidence to show that 15 Plaintiff s claim of depression was severe within the meaning of the 16 Social Security regulations. (AR at 14); see 20 C.F.R. § 416.924(c). 17 The ALJ determined that Plaintiff does not have an impairment or 18 combination of impairments that meets or medically equals one of the 19 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (AR 20 at 15); see 20 C.F.R. 416.920(d), 416.025 and 416.926). The ALJ 21 determined that the Plaintiff has the following residual functional 22 capacity ( RFC ): 23 After 24 undersigned 25 functional capacity to perform light work with the following 26 limitations: The claimant can occasional lift and/or carry 27 20 pounds and 10 pounds frequently; within an eight-hour 28 workday, she can sit, stand, and/or walk for six hours; careful consideration finds that of the the claimant 2 entire has record, the the residual 1 occasionally use her right-hand for handling and fingering. 2 However, the claimant is restricted from using a forceful 3 grip or bilateral grasp. 4 claimant must be able to alternate her hands after 15 5 minutes. (AR at 15). 6 Additionally, while driving, the Based on the testimony of the vocational expert, the ALJ found that 7 there was work available to Plaintiff in the national and local economy 8 in significant numbers. (AR at 18). Therefore, the ALJ concluded that 9 Plaintiff was not disabled, as defined in the Social Security Act, at 10 any time from June 18, 2004 through the date of the decision. (AR at 11 18). Plaintiff appealed this determination to the Appeals Council. 12 On December 8, 2007, the Appeals Council denied Plaintiff s request for 13 review. (AR at 4-6). 14 Plaintiff timely commenced this action for judicial review. 15 Plaintiff alleges that the ALJ erred as follows: (1) by failing to 16 establish that Plaintiff could perform the jobs of Order Caller, 17 Cashier II, and Ticket Taker; (2) by failing to pose a complete 18 hypothetical to the vocational expert; (3) by failing to fully develop 19 the record; and (4) by failing to properly consider the type, dosage, 20 effectiveness, and side effects of Plaintiff s medication. (Joint Stip. 21 at 2-3.) Plaintiff asks this Court to order an award of benefits, or, 22 in the alternative, to remand for a new administrative hearing. (Joint 23 Stip. at 19.) 24 25 26 II. Standard of Review Under 42 U.S.C. § 405(g), a district 27 Commissioner s decision to deny benefits. court may review the The Commissioner s or ALJ s 28 decision must be upheld unless the ALJ s findings are based on legal 3 1 error or are not supported by substantial evidence in the record as a 2 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra 3 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 4 means such evidence as a reasonable person might accept as adequate to 5 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); 6 Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more 7 than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. 8 Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether 9 substantial evidence supports a finding, the reviewing court must 10 review the administrative record as a whole, weighing both the evidence 11 that supports and the evidence that detracts from the Commissioner s 12 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 13 the evidence can support either affirming or reversing the ALJ s 14 conclusion, the reviewing court may not substitute its judgment for 15 that of the ALJ. Robbins, 466 F.3d at 882. 16 17 18 19 20 III. Discussion and Analysis A. The ALJ Properly Determined that Plaintiff Could Perform a Class of Jobs Consistent with Her Physical Limitations Plaintiff asserts that the ALJ erred in determining that 21 Plaintiff could perform the jobs of Order Caller, Cashier II and 22 Ticket Taker. (Joint Stip. at 3-4). In assessing Plaintiff s RFC, the 23 ALJ found that Plaintiff was limited to no more than occasional use of 24 her right hand for handling and fingering, in addition to a variety of 25 other exertional and non-exertional restrictions. (AR at 15). 26 on this RFC and the testimony of the vocational expert, the ALJ 27 concluded that Plaintiff was capable of performing the jobs of Order 28 Caller, Cashier II and Ticket Taker as they are generally performed in 4 Based 1 the national and local economy. (AR at 18). 2 Plaintiff alleges that she was precluded from performing these 3 jobs because the Dictionary of Occupational Titles ( DOT ) establishes 4 that the jobs of Order Caller and Cashier II both require frequent 5 fingering and handling, and the job of Ticket Taker requires frequent 6 handling. (Joint Stip. at 3-4); see DOT 209.667-014 (Order Caller), 7 DOT 8 Plaintiff claims that the ALJ s determination that Plaintiff could 9 perform these three jobs is inconsistent with the RFC, in which 10 Plaintiff may only occasionally use her right hand for handling and 11 fingering. (Joint Stip. at 3). 12 properly 13 determining that Plaintiff has the ability to perform these jobs. 14 (Joint Stip. at 4-8). 15 211.462-010 relied (Cashier on the II), DOT 344.667-010 (Ticket Taker). The Commissioner argues that the ALJ testimony of the vocational expert in Here, the ALJ properly relied on the testimony of the vocational 16 expert. (AR at 18, 258-259). 17 of any reliable job information, including information provided by a 18 vocational expert. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 19 1995). 20 necessary foundation for his or her testimony...[and]...no additional 21 foundation is required. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th 22 Cir. 2005). 23 a vocational expert that a claimant, given his or her relevant 24 limitations, can perform specific jobs existing in significant numbers 25 in the economy. Id. at 1217-1218. 26 vocational expert, the ALJ included all of the physical limitations An ALJ may take administrative notice A vocational expert s recognized expertise provides the The ALJ may properly take into account the testimony of 27 28 5 In his hypothetical to the 1 identified by Plaintiff and supported by the medical evidence.1 2 upon this information, the vocational expert found Plaintiff could 3 perform the jobs of Order Caller, Cashier II or Ticket Taker, each of 4 which captured Plaintiff s specific abilities and limitations. 5 ALJ s reliance on testimony the vocational expert gave in response to 6 the ALJ s hypothetical was therefore proper. Id. at 1217. Based The 7 Furthermore, the vocational expert provided testimony that all 8 three jobs existed in sufficient numbers in the national and local 9 economies.2 The vocational expert even eroded the number of Cashier II 10 jobs available by 50% to account for Plaintiff s limitations, an action 11 adopted by the ALJ s decision. (AR at 18.) The vocational expert 12 testified that Plaintiff would not have to do more than occasional 13 handling and fingering with the right hand with a 50% erosion rate for 14 Cashier II jobs. (AR at 258). Thus, the vocational expert specifically 15 took into account Plaintiff s limitation in only being able to do 16 occasional handling and fingering with the right hand by stating 17 that, while this limitation would certainly eliminate a number of 18 cashier jobs...there would be some left. (AR at 259). Therefore, 19 under these circumstances, the ALJ did not err in adopting the 20 vocational expert s testimony. 21 22 23 24 25 26 27 28 1 When the ALJ asked Plaintiff if he had left out any other limitations from the hypothetical question, Plaintiff answered in the negative. (AR at 258). 2 The vocational expert testified as follows: There would be work as an order caller. Order caller is light, unskilled, SVP 2. Regionally, there are 1,000 positions; nationally, there are 15,000 positions. There would be work as a cashier 2, also light, unskilled, SVP 2. I would erode the number of those jobs by 50 percent which would leave 2,500 regionally and in excess of 50,000 nationally. [¶] There would be work as a ticket taker which is light, unskilled, SVP 2. Regionally, there are 500 positions; nationally, there are 8,300 positions. (AR at 258-259). 6 1 Additionally, the Court agrees with the Commissioner that 2 Plaintiff is qualified to do each of the jobs identified by the 3 vocational expert - Order Taker, Cashier II and Ticket Taker. 4 these jobs require that both hands be capable of frequent fingering 5 and handling, or that the fingering and handling be performed by the 6 dominant hand. (DOT Nos. 209.667-014, 211.462-010, and 344.667-010). 7 Therefore, even though Plaintiff is right-handed, because she has no 8 fingering or handling limitations as to her left hand, she is able to 9 perform each of these jobs. None of 10 Based on Plaintiff s RFC and the testimony of the vocational 11 expert, the ALJ properly concluded that Plaintiff was capable of 12 performing work that exists in significant numbers in the national and 13 local economies. 14 15 B. Therefore, no relief is warranted on this issue. The ALJ Posed a Proper Hypothetical Question to the Vocational Expert 16 Plaintiff contends that the ALJ improperly posed a hypothetical 17 question to the vocational expert that did not include the restriction 18 on Plaintiff s using a forceful grip or a bilateral grasp, as provided 19 in the RFC. (Joint Stip. at 8). 20 the ALJ to the vocational expert is as follows: The hypothetical question posed by 21 [T]he situation we have is a 41-year-old individual who has a 22 high school education, and whose lifting capacity is limited 23 to 20 pounds occasionally and on a more frequent basis would 24 have to be under ten pounds; sitting, standing, and walking is 25 also somewhat limited and she needs to be able to or she 26 can t do any one position the entire day. 27 than six hours out of eight hours for any one of those 28 individual activities, not all at once. 7 She can t do more She d have to have 1 normal breaks after two hours or every two hours, but the 2 total after over an eight-hour workday would total at eight 3 hours. 4 handling and fingering occasionally, and she is right-handed; 5 and can t do any forceful gripping or grasping with either 6 hand. 7 15 minutes would have to alternate hands use of the 8 hands....With identify 9 unskilled work that could be performed? 10 With regard to her right hand, she can only do If she s doing an activity like driving, after ten or those limitations, can you any (AR at 257-258) (emphasis added). 11 The Court finds that the ALJ posed a complete hypothetical 12 question to the vocational expert, which properly took into account 13 the Plaintiff s limitations in using her hands. In the hypothetical 14 question, the ALJ specifically instructed the vocational expert to 15 consider that Plaintiff can t do any forceful gripping or grasping 16 with either hand, which is substantially equivalent to a forceful 17 grip or bilateral grasp. The point of a hypothetical question is to 18 clearly present to the [vocational expert] a set of limitations that 19 mirror those of the claimant. Roe v. Chater, 92 F.3d 672, 676 (9th 20 Cir. 1996). While the hypothetical question must set forth all of the 21 claimant s 22 symptomatic terms where other descriptive terms can adequately define 23 the claimant s impairments. Id. Here, while the hypothetical question 24 posed by the ALJ did not use the exact terminology of a forceful grip 25 or bilateral grasp, nevertheless it clearly present[ed] to the 26 vocational expert Plaintiff s limitations on the use of her hands. 27 Further, none of the three identified jobs, Order Caller, Cashier 28 II, or Ticket Taker, requires forceful gripping or grasping. (DOT Nos. impairments, it need not 8 use specific diagnostic or 1 209.667-014, 211.462-010, 344.667-010). Therefore, even if the ALJ had 2 not included a limitation on Plaintiff s ability to grip and grasp, 3 the vocational expert would still have determined that Plaintiff is 4 capable of performing these jobs. Accordingly, relief is not warranted 5 on this issue. 6 C. 7 Plaintiff claims that the ALJ failed to properly develop the 8 administrative record regarding Plaintiff s claim of depression (Joint 9 Stp. at 10-11). During the administrative hearing, Plaintiff testified 10 that she was on medication for depression. (AR at 252). In response 11 to a question posed by the ALJ as to whether Plaintiff was seeing 12 anyone for her depression, Plaintiff stated that her regular doctor 13 gives [her] the medication. (AR at 259). When asked by the ALJ 14 whether the medication helped, Plaintiff testified that her doctor had 15 doubled the medication, but it still doesn t work. (AR at 259). 16 Plaintiff did not name the medication or further elaborate on her 17 claim that she suffered from depression. Plaintiff contends that, 18 based solely on her testimony, the ALJ had a duty to further develop 19 the record regarding her alleged depression. The ALJ Properly Developed the Record 20 The ALJ has a special duty to develop the record fully and 21 fairly and to ensure that the claimant s interests are considered, 22 even when the claimant is represented by counsel. Tonapetyan v. 23 Halter, 242 F.3d 1144, 1150 (9th Cir.2001). However, the ALJ has a 24 duty to develop the record only when there is ambiguous evidence or 25 when the record is inadequate to allow for proper evaluation of the 26 evidence. Id. 27 A claimant for disability benefits bears the burden of producing 28 evidence to demonstrate that he or she was disabled within the 9 1 relevant time period. Johnson, 60 F.3d at 1432. The existence of a 2 severe impairment is demonstrated when the evidence establishes more 3 than a minimal effect on an individual s ability to do basic work 4 activities. 5 C.F.R. §§ 404.1521(a), 416.921(a).3 Furthermore, the existence of 6 emotional disorder...is not per se disabling...there must be proof of 7 the impairment s disabling severity. Sample v. Schweiker, 694 F.2d 8 639, 642-643 (9th Cir. 1982) (internal citations omitted). To prove 9 that a disability is severe, the plaintiff must present complete and 10 detailed objective medical reports of her condition from licensed 11 medical professionals. Johnson, 60 F.3d at 1432 (citing 20 C.F.R. 12 §§ 404.1512(a)-(b), 404.1513(d)). Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 13 Here, the ALJ had no duty to further develop the record because 14 the record before the ALJ in this case was neither ambiguous nor 15 inadequate to allow for proper evaluation of the evidence. Aside from 16 her brief testimony at the administrative hearing, Plaintiff did not 17 produce any evidence to show that her alleged depression was severe. 18 Plaintiff did not provide any medical evidence to show that she ever 19 complained to a physician that she suffered from severe depression or 20 that such depression limited or restricted her in any way. (AR 247- 21 257, 259-260). Plaintiff also failed to produce any record of a 22 physician s diagnosis of depression. (AR at 107-242). Similarly, in 23 her testimony at the administrative hearing, Plaintiff never mentioned 24 25 26 27 28 3 The regulations define basic work activities as the abilities and aptitudes necessary to do most jobs , which include physical functions such as walking, standing, sitting, pushing, carrying; capacities for seeing, hearing and speaking; understanding and remembering simple instructions; responding appropriately in a work setting; and dealing with changes in a work setting. 20 C.F.R. § 404.1521(b). 10 1 any limitations or restrictions as a result of her alleged depression. 2 (AR at 247-257, 259-260). 3 Further, the medical records provided to the ALJ include only one 4 reference to Plaintiff actual being prescribed an antidepressant 5 medication. 6 Lauron, prescribed Effexor, although there is no record that the 7 prescription was ever refilled. (AR at 114). Plaintiff did submit one 8 additional medical record to the Appeals Council, dated August 7, 9 2006, in which Dr. Neera Grover, a specialist in gastroenterology, 10 diagnosed Plaintiff with anxiety and reactive depression, based on 11 Plaintiff s complaint of a significant increase in stress due to 12 personal problems with her daughter. (AR at 238). Dr. Grover stated 13 that a trial of Xanax or antidepressant may be considered. (Id.). 14 However, there is no medical record showing that Dr. Grover ever 15 prescribed Xanax or any other antidepressant medication to Plaintiff. 16 For the reasons noted above, the ALJ correctly determined that, 17 as to Plaintiff s claimed depression, there [was] insufficient 18 evidence to show that it causes a limitation and/or restriction having 19 more 20 activities. (AR at 14). Therefore, the Court finds that the ALJ 21 properly developed the record and reached a conclusion that was 22 supported by substantial evidence. 23 than D. 24 On April 15, 2004, Plaintiff s physician, Dr. Mark a minimal effect on her ability to do basic work The ALJ Properly Considered the Type, Dosage, Effectiveness and Side Effects of Plaintiff s Medication 25 Plaintiff contends that the ALJ failed to properly consider the 26 side 27 determination. (Joint Stip. at 15-17). 28 July 22, 2004, Plaintiff claimed that Soma caused dizziness (AR at effects of her medication 11 in reaching the disability In a disability report dated 1 70). In a disability report appeal dated April 19, 2005, Plaintiff 2 claimed that Nexium made her feel sick. (AR at 91). In a disability 3 report appeal dated July 7, 2005, Plaintiff claimed additional side 4 effects 5 Methocarbanol and Carisoprodol made Plaintiff sleepy and dizzy; 6 and Oxybutynin gave Plaintiff cotton mouth. (AR at 102). 7 also noted that she was taking Effexor for depression, but stated that 8 it did not produce any side effects. (AR at 91). from medication: aspirin gave Plaintiff stomach aches; Plaintiff 9 The ALJ must consider all factors that might have a significant 10 impact on an individual s ability to work. Erickson v. Shalala, 9 11 F.3d 813, 817 (9th Cir. 1993) (quoting Varney v. Secretary of Health 12 & Human Services, 846 F.2d 581, 585 (9th Cir. 1987), relief modified, 13 859 F.2d 1396 (1988)). Such factors may include side effects of 14 medications as well as subjective evidence of pain. Erickson, 9 F.3d 15 at 818; Varney, 846 F.3d at 585 ( [S]ide effects can be a highly 16 idiosyncratic phenomenon and a claimant s testimony as to their 17 limiting effects should not be trivialized. ) (citation omitted). 18 However, Plaintiff bears the burden of producing medical evidence to 19 show that any claimed side effects from medication are severe enough 20 to interfere with her ability to work. See Osenbrock v. Apfel, 240 21 F.3d 1157, 1164 (9th Cir. 2001) (finding that passing mentions of the 22 side effects of...medication in some of the medical records was 23 insufficient evidence). 24 As support for her claim, Plaintiff cites the Complete Guide to 25 Prescription & Nonprescription Drugs, 2007 Edition, for a myriad of 26 possible side effects of each of the above-referenced medications. 27 (Joint Stip. at 16). The Court notes that the Social Security 28 regulations do not require an ALJ to consider a claimant s medications 12 1 as part of every disability determination. The mere fact that a 2 claimant takes a certain medication, in and of itself, is not evidence 3 that the claimant also experiences any one of the myriad possible side 4 effects 5 potential side effects from a particular medication does not establish 6 that this claimant experiences these side effects, which prevents him 7 or her from working for these reasons. from that medication. Further, a simple recitation of 8 This specific information must be presented to the ALJ as part 9 of the claimant s burden to demonstrate disability. If Plaintiff s 10 medications prevent her from working, she has to say so. Only at that 11 point does the type, dosage, effectiveness, and side effects of 12 medication become relevant, so the ALJ can evaluate Plaintiff s 13 credibility. 14 these factors only [w]hen additional information is needed to assess 15 the credibility of the individual s statements about symptoms and 16 their effects, because the adjudicator must make every reasonable 17 effort to obtain available information that could shed light on the 18 credibility of the individual s statements. SSR 96-7p, 1996 WL 19 374186, at *3 (S.S.A. 1996). 20 impairment at the outset, the ALJ has no duty to inquire as to the 21 claimant s medications. As the regulations make clear, the ALJ must consider Absent an individual s statements of 22 The Court concludes that Plaintiff has failed to demonstrate that 23 side effects from her medications precluded her from engaging in any 24 substantial 25 administrative hearing, Plaintiff never mentioned any side effects 26 from her medications or claimed that she was unable to work due to 27 side effects. (AR at 247-257, 259-260). Nor was there any evidence in 28 the record indicating that the side effects of Plaintiff s medications gainful activity. During 13 her testimony at the 1 would have impaired her ability to work. See Osenbrock, 240 F.3d at 2 1164. 3 ALJ, who did not err by reaching his disability determination without 4 analyzing 5 Plaintiff s medication. Plaintiff therefore failed to fairly present the issue to the the type, dosage, effectiveness, and side effects of 6 7 8 9 V. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. 10 11 Dated: October 9, 2008 12 13 14 ________________________ Marc L. Goldman United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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