Susanne McNeill v. Michael J Astrue, No. 5:2008cv00257 - Document 20 (C.D. Cal. 2009)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle: IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (See document for further details.) (pcl)

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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 SUSANNE McNEILL, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. EDCV 08-257 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned magistrate judge. 21 review of the denial of disability benefits. 22 judgment should be granted in favor of defendant, affirming the 23 Commissioner s decision. 24 25 I. Plaintiff seeks The court finds that BACKGROUND Plaintiff Susanne McNeill was born on November 2, 1955, and was 26 fifty-one years old at the time of her administrative hearing. 27 [Administrative Record ( AR ) 63, 232.] 28 school education and past relevant work experience as a security 1 She has at least a high 1 guard. [AR 17.] Plaintiff alleges disability on the basis of lower 2 lumbar damage/cervical sprain. [AR 50.] 3 4 II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on February 25, 2008, and filed 5 on February 28, 2008. 6 answer and plaintiff s Administrative Record ( AR ). 7 2009, the parties filed their Joint Stipulation ( JS ) identifying 8 matters not in dispute, issues in dispute, the positions of the 9 parties, and the relief sought by each party. 10 taken under submission without oral argument. 11 12 III. On September 29, 2008, defendant filed an On August 10, This matter has been PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for supplemental security income ( SSI ) and 13 disability insurance benefits ( DIB ) on August 1, 2005, alleging 14 disability since March 13, 2005. [AR 10.] 15 denied initially and on reconsideration, plaintiff requested an 16 administrative hearing, which was held on October 3, 2007, before 17 Administrative Law Judge ( ALJ ) John W. Belcher. [AR 232.] 18 appeared with counsel, and testimony was taken from plaintiff, medical 19 expert Samuel Landau and vocational expert David Rinehart. [AR 233.] 20 The ALJ denied benefits in a decision issued on October 19, 2007. 21 10-19.] 22 the ALJ s decision became the Commissioner s final decision. [AR 3.] 23 24 After the applications were Plaintiff [AR When the Appeals Council denied review on January 28, 2008, IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. 26 ALJ s) findings and decision should be upheld if they are free of 27 legal error and supported by substantial evidence. 28 court determines that a finding is based on legal error or is not 2 The Commissioner s (or However, if the 1 supported by substantial evidence in the record, the court may reject 2 the finding and set aside the decision to deny benefits. 3 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 4 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 5 F.3d 1157, 1162 (9th Cir. 6 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 7 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 8 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 9 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 10 preponderance. Reddick, 157 F.3d at 720. 11 which a reasonable person might accept as adequate to support a 12 conclusion. 13 a finding, a court must review the administrative record as a whole, 14 weighing both the evidence that supports and the evidence that 15 detracts from the Commissioner s conclusion. 16 can reasonably support either affirming or reversing, the reviewing 17 court may not substitute its judgment for that of the Commissioner. 18 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports 19 V. Id. If the evidence DISCUSSION 20 A. THE FIVE-STEP EVALUATION 21 To be eligible for disability benefits a claimant must 22 demonstrate a medically determinable impairment which prevents the 23 claimant from engaging in substantial gainful activity and which is 24 expected to result in death or to last for a continuous period of at 25 least twelve months. 26 721; 42 U.S.C. § 423(d)(1)(A). 27 28 Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at Disability claims are evaluated using a five-step test: Step one: Is the claimant engaging in substantial 3 1 gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 2 3 4 5 6 7 8 9 10 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 11 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 12 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 13 C.F.R. § 404.1520, § 416.920. 14 not disabled at any step, there is no need to complete further 15 steps. 16 If a claimant is found disabled or Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. Claimants have the burden of proof at steps one through four, 17 subject to the presumption that Social Security hearings are non- 18 adversarial, and to the Commissioner s affirmative duty to assist 19 claimants in fully developing the record even if they are represented 20 by counsel. 21 1288. 22 made, and the burden shifts to the Commissioner (at step five) to 23 prove that, considering residual functional capacity ( RFC )1, age, Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is 24 25 26 27 28 1 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that plaintiff had not engaged in substantial 6 gainful activity since her alleged disability onset date (step one); 7 that plaintiff had severe impairments, namely mild degenerative disc 8 disease of the cervical spine and a chronic right ankle sprain (step 9 two); and that plaintiff did not have an impairment or combination of 10 impairments that met or equaled a listing (step three). [AR 12, 14.] 11 The ALJ determined that Plaintiff had an RFC for a narrowed range of 12 light work, including the ability to lift ten pounds frequently and 13 twenty pounds occasionally; stand and/or walk for two hours and sit 14 for six hours in an eight-hour workday; no balancing or climbing 15 ladders, ropes or scaffolds; occasionally bend, stoop and move the 16 neck; no extreme ranges of motion of the neck; hold the neck in a 17 fixed position for fifteen to thirty minutes; and no working at 18 unprotected heights or around hazardous or fast-paced machinery. [AR 19 14.] 20 relevant work as a security guard (step four). [AR 17.] 21 vocational expert testified that a person with plaintiff s RFC could 22 perform work existing in significant numbers in the national economy, 23 such as assembler of small products, cashier II, or fund raiser II 24 (step five). [AR 18.] 25 as defined by the Social Security Act. [Id.] Plaintiff s RFC precluded her from returning to her past The Accordingly, plaintiff was found not disabled 26 27 28 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 C. 2 The parties Joint Stipulation sets out the following disputed 3 issues: 4 1. ISSUES IN DISPUTE 5 6 treating chiropractor; 2. 7 8 Whether the ALJ properly considered Plaintiff s testimony regarding pain; 3. 9 10 Whether the ALJ properly considered the opinion of the Whether the ALJ properly considered the severity of Plaintiff s borderline intellectual functioning; and 4. 11 Whether the ALJ posed a complete hypothetical question to the vocational expert. 12 [JS 2-3.] 13 D. 14 On March 13, 2005, Plaintiff was involved in an automobile ISSUES ONE AND FOUR: CHIROPRACTIC OPINION 15 accident and complained of pain in her neck, right shoulder, right 16 shoulder blade, between the shoulders, the right side of the lower 17 back, and close to the right hip. [AR 155.] 18 weekly physical therapy on March 26, 2005. [Id.] 19 upon examination, Dr. Roy John Robinson made a diagnosis of More than 20 50% improved on all following conditions, which were originally 21 considered as mild: mild sprain of cervical spine, strain of the 22 bilateral shoulder blades and right hip sprain. [AR 155.] Plaintiff began twiceOn April 5, 2005, 23 On June 28, 2005, Gerardo Guevara, a chiropractor, filled out a 24 Work Status Report stating, among other things, that Plaintiff had a 25 cervical/lumbar sprain/strain and that she was unable to sit, stand 26 or walk for longer than fifteen to twenty minutes. [AR 152.] 27 Guevara concluded, however, that Plaintiff could perform her regular 28 or customary work by August 9, 2005. [Id.] 6 Mr. The record contains 1 subsequent evaluations of physical therapy received by Plaintiff that 2 end on December 21, 2005. [AR 136-37.] 3 Plaintiff contends that the ALJ did not properly take into 4 account Mr. Guevara s opinion of Plaintiff s functional limitations, 5 specifically, his opinion that Plaintiff could not sit, stand or walk 6 for longer than fifteen to twenty minutes. [JS 3-4.] 7 contends that this limitation should have been included in the 8 hypothetical question asked to the vocational expert at the hearing. 9 [JS 15.] 10 Plaintiff also Plaintiff s contentions lack merit because Mr. Guevara s cited 11 opinion as to Plaintiff s limited ability to sit, stand and walk was 12 not significant or probative to the ALJ s RFC finding. 13 Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). 14 analyzed Plaintiff s physical therapy records on the whole, of which 15 Mr. Guevara s one-time evaluation, which was conducted during the 16 initial stages of Plaintiff s therapy and does not reasonably permit 17 an inference of disability, was only a minor part and in conflict with 18 substantial evidence in the record. Id. (ALJ s failure to reference 19 lay opinion was harmless when opinion conflicted with available 20 medical evidence and substantial evidence supported Commissioner s 21 decision). 22 of the Commissioner s decision. See Vincent v. The ALJ comprehensively Accordingly, Issues One and Four do not warrant reversal 23 E. ISSUE TWO: PLAINTIFF S TESTIMONY 24 In Issue Two, Plaintiff contends that the ALJ s credibility 25 evaluation of Plaintiff s subjective pain testimony was not supported 26 by clear and convincing reasons. [JS 7-9.] 27 testified that following her automobile accident in March 2005, she 28 had striking pain in her right foot, lower back, neck, and just my 7 At the hearing, Plaintiff 1 whole right side, basically. [AR 244- 46.] Plaintiff also testified 2 to loss of balance and that she could not sit or stand for more than 3 thirty minutes at a time or lift more than ten pounds. [AR 247, 259.] 4 In the administrative decision, the ALJ recounted the above 5 testimony. [AR 12-13.] The ALJ concluded that although Plaintiff s 6 medically determinable impairments could reasonably be expected to 7 produce the alleged symptoms, Plaintiff s statements concerning the 8 intensity, persistence and limiting effects of these symptoms were 9 not entirely credible. [AR 16.] The ALJ s cited reasons for this 10 finding, based on the record, were that Plaintiff had a prior arrest 11 history, including an arrest for writing bad checks ; she gave 12 insufficient effort at her psychological examination, including an 13 invalid test score indicating over reporting of symptoms2; there was 14 lack of supporting objective medical findings, such as no evidence of 15 fracture, malalignment or foraminal degenerative spondylosis; 16 indications of improvement through physical therapy; and there was 17 lack of significant limitations in Plaintiff s daily activities, such 18 as shopping, making meals, dressing, walking and driving. [AR 16.] 19 Upon review of the whole record, it is evident that the ALJ s 20 credibility determination is supported by clear and convincing 21 reasons. 22 2008)( We have consistently held that where the record includes 23 objective medical evidence establishing that the claimant suffers from Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 24 25 26 27 28 2 At a psychological evaluation conducted on May 15, 2007, Dr. Ahmad R. Riahinejad observed that Plaintiff s overall attitude was characterized by what appeared to be slightly insufficient effort and that Plaintiff s performance on the Minnesota Multiphasic Personality Inventory resulted in an invalid profile indicating over-reporting psychopathology in an effort to appear worse than a person actually is. [AR 184, 186.] 8 1 an impairment that could reasonably produce the symptoms of which he 2 complains, an adverse credibility finding must be based on clear and 3 convincing reasons ). 4 Plaintiff s complaints not entirely credible were supported by 5 substantial evidence under this standard. 6 533 F.3d 1035, 1040 (9th Cir. 2008)( The ALJ may rely on ordinary 7 techniques of credibility evaluation ); Burch v. Barnhart, 400 F.3d 8 676 (9th Cir. 2005)( Although lack of medical evidence cannot form the 9 sole basis for discounting pain testimony, it is a factor that the ALJ The reasons provided by the ALJ to find See Tommasetti v. Astrue, 10 can consider in his credibility analysis. ); Tonapetyan, 242 F.3d at 11 1148 (finding credibility determination supported by substantial 12 evidence where claimant s gave poor effort at consultative 13 examination); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 14 2001)(finding credibility determination supported by substantial 15 evidence where claimant s participation in daily activities was 16 consistent with ability to work). 17 warrant reversal of the Commissioner s decision. Accordingly, this issue does not 18 F. 19 During her psychological evaluation, Plaintiff was tested on the ISSUE THREE: BORDERLINE INTELLECTUAL ACTIVITY 20 Wechsler Adult Intelligence Scale (3rd Ed.) and received the following 21 scores: Verbal IQ of 80, Performance IQ of 78, and Full Scale IQ of 22 77. [AR 185-86.] Dr. Riahinejad made the following conclusion: 23 These scores place her within the upper end of borderline range 24 of intellectual ability, and appear to be slightly an 25 underestimate. 26 which appears to be an accurate assessment. 27 is lower because of her overall slowness. 28 [AR 186.] Her Verbal IQ falls within the low average range, 9 Her Performance IQ 1 In the administrative decision, the ALJ noted Plaintiff s scores 2 and Dr. Riahinejad s conclusion. [AR 13.] At step two of the five- 3 step evaluation, however, the ALJ stated that [t]here is no basis for 4 finding that the claimant has a severe mental impairment or for the 5 imposition of any mental limitations that would preclude the 6 performance of work within the assessed residual functional capacity. 7 [AR 13.] 8 substantial evidence, citing two Eighth Circuit cases for the 9 proposition that borderline intellectual functioning is a severe Plaintiff contends that this finding was not supported by 10 impairment at step two of the five-step evaluation. [JS 11-12, citing 11 Hunt v. Massanari, 250 F.3d 622, 625-26 (8th Cir. 2001), and Lucy v. 12 Chater, 113 F.3d 905, 908 (8th Cir. 1997).] 13 However, review of the record indicates that the ALJ s finding 14 that Plaintiff does not have a severe mental impairment is supported 15 by substantial evidence. 16 distinguishable in this case, based on Dr. Riahinejad s opinion that 17 Plaintiff s test scores were slightly an underestimate of her 18 intellectual capacity, as well as his observation that Plaintiff did 19 not make a full effort during the evaluation. 20 contains no evidence that deficits in Plaintiff s intellectual 21 functioning significantly limited her from performing basic work 22 activities, including the non-skilled jobs cited by the Commissioner 23 at step five of the five-step evaluation. 24 05-770 FFM, 2008 WL 4289786 at *3 (C.D. Cal. Sept. 16, 2008) 25 (distinguishing Hunt where record contained no evidence to support 26 inference of severe impairment from IQ score of 79); cf. Tagger v. 27 Astrue, 536 F. Supp. 2d 1170, 1179-80 (C.D. Cal. Jan. 24, 28 2008)(finding claimant had severe mental impairment when record The caselaw cited by Plaintiff is 10 Moreover, the record See Lor v. Astrue, No. EDCV 1 indicated claimant s test results signified borderline intellectual 2 functioning on three occasions over six-year period). 3 this issue does not merit reversal of the Commissioner s decision. 4 V. Accordingly, ORDERS 5 Accordingly, IT IS ORDERED that: 6 1. The decision of the Commissioner is AFFIRMED. 7 2. This action is DISMISSED WITH PREJUDICE. 8 3. The Clerk of the Court shall serve this Decision and Order 9 and the Judgment herein on all parties or counsel. 10 11 12 13 DATED: September 15, 2009 __________/S/____________________ CARLA M. WOEHRLE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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