Jose Francisco Ochoa v. Michael J Astrue, No. 5:2008cv01858 - 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 JOSE FRANCISCO OCHOA, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. EDCV 08-1858 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 Jose Francisco Ochoa was born on February 13, 1954, and 26 was fifty-three years old at the time of his administrative hearing. 27 [Administrative Record ( AR ) 18, 96.] 28 education and no past relevant work. [AR 15.] 1 He has twelve years of Plaintiff alleges 1 disability on the basis of hepatitis C and stomach ulcers. [AR 34.] 2 3 II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on December 15, 2008, and filed 4 on December 26, 2008. 5 Plaintiff s Administrative Record ( AR ). 6 parties filed their Joint Stipulation ( JS ) identifying matters not 7 in dispute, issues in dispute, the positions of the parties, and the 8 relief sought by each party. 9 submission without oral argument. 10 11 III. On June 22, 2009, Defendant filed an answer and On August 26, 2009, the This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for supplemental security income ( SSI ) under 12 Title XVI of the Social Security Act on May 19, 2006, alleging 13 disability since January 1, 2004. [AR 96.] 14 denied initially and on reconsideration, plaintiff requested an 15 administrative hearing, which was held on January 24, 2008, before 16 Administrative Law Judge ( ALJ ) Barry S. Brown. [AR 18.] 17 appeared with counsel and gave testimony. [AR 19.] 18 benefits in a decision issued on March 20, 2008. 19 the Appeals Council denied review on October 31, 2008, the ALJ s 20 decision became the Commissioner s final decision. [AR 1-3.] 21 22 IV. After the application was Plaintiff The ALJ denied [AR 11-17.] When STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner s decision to deny benefits. 24 ALJ s) findings and decision should be upheld if they are free of 25 legal error and supported by substantial evidence. 26 court determines that a finding is based on legal error or is not 27 supported by substantial evidence in the record, the court may reject 28 the finding and set aside the decision to deny benefits. 2 The Commissioner s (or However, if the See Aukland 1 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 2 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 3 F.3d 1157, 1162 (9th Cir. 4 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 5 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 6 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 7 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 8 preponderance. Reddick, 157 F.3d at 720. 9 which a reasonable person might accept as adequate to support a Id. It is relevant evidence 10 conclusion. To determine whether substantial evidence supports 11 a finding, a court must review the administrative record as a whole, 12 weighing both the evidence that supports and the evidence that 13 detracts from the Commissioner s conclusion. 14 can reasonably support either affirming or reversing, the reviewing 15 court may not substitute its judgment for that of the Commissioner. 16 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. 17 V. Id. If the evidence DISCUSSION 18 A. 19 To be eligible for disability benefits a claimant must THE FIVE-STEP EVALUATION 20 demonstrate a medically determinable impairment which prevents the 21 claimant from engaging in substantial gainful activity and which is 22 expected to result in death or to last for a continuous period of at 23 least twelve months. 24 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 25 Disability claims are evaluated using a five-step test: 26 Step one: Is the claimant engaging in substantial 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 27 28 3 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. 1 2 3 4 5 6 7 8 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 9 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 10 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 11 C.F.R. § 404.1520, § 416.920. 12 not disabled at any step, there is no need to complete further 13 steps. 14 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, 15 subject to the presumption that Social Security hearings are non- 16 adversarial, and to the Commissioner s affirmative duty to assist 17 claimants in fully developing the record even if they are represented 18 by counsel. 19 1288. 20 made, and the burden shifts to the Commissioner (at step five) to 21 prove that, considering residual functional capacity ( RFC )1, age, 22 education, and work experience, a claimant can perform other work 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 23 1 24 25 26 27 28 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 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). 4 1 which is available in significant numbers. Tackett, 180 F.3d at 1098, 2 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. 3 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 4 Here, the ALJ found that Plaintiff had not engaged in substantial 5 gainful activity since May 19, 2006, the filing date of Plaintiff s 6 Title XVI application (step one); that Plaintiff had severe 7 impairments, namely hypertension, history of hepatitis C and history 8 of polysubstance abuse (step two); and that Plaintiff did not have an 9 impairment or combination of impairments that met or equaled a 10 listing (step three). [AR 13.] The ALJ determined that Plaintiff 11 had an RFC for the full range of medium work. [Id.] 12 past relevant work (step four). [AR 15.] 13 203.21 of the Medical-Vocational Guidelines, it was determined that 14 Plaintiff could perform work existing in significant numbers in the 15 national economy (step five). [AR 16.] 16 found not disabled as defined by the Social Security Act. [Id.] Plaintiff had no Based on application of Rule Accordingly, Plaintiff was 17 C. 18 The parties Joint Stipulation identifies the following disputed 19 issues: 20 1. ISSUES IN DISPUTE Whether the ALJ properly considered the Plaintiff s 21 testimony regarding his alleged memory problems and severe 22 depression; 23 2. Whether the ALJ properly considered the Plaintiff s 24 testimony regarding his alleged inability to read, write, 25 speak or understand English; 26 3. examiner s opinion; and 27 28 Whether the ALJ properly considered the consultative 4. Whether the ALJ should have obtained vocational expert 5 testimony. 1 2 [JS 2-3.] 3 D. 4 In the first claim, Plaintiff asserts that the ALJ did not 5 properly consider Plaintiff s testimony regarding his memory problems 6 and severe depression. [JS 3-5.] 7 Plaintiff testified, among other things, that he is depressed 8 sometimes, and that this condition is severe. [AR 25.] 9 also testified that he has troubles with his memory and difficulty 10 ISSUE ONE: DEPRESSION AND MEMORY PROBLEMS At the administrative hearing, Plaintiff with concentration. [Id.] 11 The ALJ did not reference this portion of Plaintiff s testimony 12 in the administrative decision but noted that Plaintiff has offered 13 little objective medical evidence of a medically determinable 14 impairment or impairment related limitations. [AR 14.] 15 determined, based on a number of reasons including inconsistencies in 16 the Plaintiff s testimony, that Plaintiff s testimony although 17 appearing sincere, is not fully credible regarding his symptoms and 18 functional limitations. [Id.] 19 determination constituted reversible error because it was not 20 sufficiently specific as to Plaintiff s allegations of depression 21 and memory problems. [JS 3-5.] 22 The ALJ also Plaintiff asserts that this The appropriate standard in the Ninth Circuit for evaluations of 23 subjective symptom testimony in Social Security disability cases 24 requires, first, that the claimant produce medical evidence of an 25 underlying impairment which is reasonably likely to be the cause of 26 the alleged symptom; when this evidence is produced, the Commissioner 27 may not reject a claimant s credibility without specifically making 28 findings which support this conclusion. 6 Bunnell v. Sullivan, 947 F.2d 1 341, 345 (9th Cir. 1991)(en banc)(affirming standard of Cotton v. 2 Bowen, 799 F.2d 1403, 1407 (1986), for review of ALJ evaluations of 3 pain and subjective symptom testimony). 4 must state clear and convincing reasons that includes a specific 5 statement of which symptom testimony is not credible and what facts in 6 the record lead to that conclusion. 7 1284 (9th Cir. 1996)(citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th 8 Cir. 1993)); see also Lester v. Chater, 81 F.3d at 834 ( For the ALJ 9 to reject the claimant s complaints, [the ALJ] must provide specific, 10 The credibility determination Smolen v. Chater, 80 F.3d 1273, cogent reasons for the disbelief ). 11 Here, Plaintiff s assertion that the ALJ s evaluation of the 12 hearing testimony was not sufficiently specific regarding Plaintiff s 13 statements regarding his depression and memory problems lacks merit 14 because Plaintiff did not satisfy the initial requirement of producing 15 medical evidence of an underlying impairment to warrant such an 16 evaluation. 17 objective medical evidence of a medically determinable impairment or 18 impairment related limitation. 19 Plaintiff was diagnosed with or sought treatment for depression or 20 memory problems, and Plaintiff s subjective complaints by themselves 21 were insufficient to warrant further analysis. 22 Sullivan, 947 F.2d at 347 ( We rejected the claims for disability 23 because the claimant failed to produce medical evidence of an 24 underlying impairment . . . [although] the pain need not be 25 corroborated by objective medical findings, . . . some impairment must 26 be medically ascertained. )(citations omitted). 27 claim provides no grounds to reverse the ALJ s decision. As the ALJ correctly noted, the record contains almost no The record does not indicate that 28 7 See Bunnell v. Accordingly, this 1 E. ISSUE TWO: LACK OF ENGLISH PROFICIENCY 2 In the second claim for relief, Plaintiff asserts that the ALJ s 3 finding as to Plaintiff s ability to read, write, speak or understand 4 English was based on unsupported opinions and assumptions. [JS 10-12.] 5 The record indicates that, as part of his disability application, 6 Plaintiff stated that he does not speak and understand English, and 7 that his preferred language was Spanish. [AR 104.] 8 Spanish-language interpreter was available. [AR 20.] 9 Plaintiff s testimony, however, the ALJ made the observation that At the hearing, a During 10 Plaintiff was speaking English, and Plaintiff replied that I 11 understand it. [AR 29.] 12 In the administrative decision, the ALJ determined that Plaintiff 13 is at least able to communicate in English and/or has basic English 14 skills. [AR 16.] 15 Plaintiff had lived in the United States for almost forty years, that 16 he had worked for many years,2 that it was improbable that he is not 17 at least able to communicate in English, and that at the hearing, 18 Plaintiff did not deny that he could communicate in English, but only 19 stated that he had problems. [Id.] 20 of Plaintiff s lack of English proficiency has significant 21 ramifications for his vocational base, that the ALJ s finding is 22 speculative, and that the evaluation does not meet the Ninth Circuit 23 standard for credibility determinations. [JS 10-12.] 24 Plaintiff s assertions are without merit. 25 In support of this finding, the ALJ noted that Plaintiff contends that evidence The ALJ provided specific, cogent reasons for disregarding Plaintiff s claim that 26 2 27 28 Although the ALJ found that Plaintiff had no past relevant work as defined by the Act (20 C.F.R. § 416.965), Plaintiff reported in his application that he worked as a painter in the construction industry from 1982 to 1987. [AR 16, 106.] 8 1 satisfied the Bunnell standard above. 2 determination that it was improbable that Plaintiff lacked basic 3 English skills based on factors such as Plaintiff s lengthy residence 4 in the United States, his work history, and his statements at the 5 hearing. 6 English has significant ramifications for his vocational base is 7 incorrect. 8 to determine whether Plaintiff could perform work existing in 9 significant numbers in the national economy, based on undisputed The record supports the ALJ s Moreover, Plaintiff s assertion that lack of proficiency in The ALJ s application of the Medical-Vocational Guidelines 10 factors such as Plaintiff s age and exertional ability, directed a 11 finding of non-disability at all levels of English proficiency. 12 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 3. 13 claim must be denied. See Accordingly, this 14 F. ISSUE THREE: CONSULTATIVE EXAMINER S OPINION 15 In Claim Three, Plaintiff asserts that the ALJ merely 16 summarized the opinion of an examining physician, Dr. Rocely Ella- 17 Tamayo, but failed to explain whether he accepted or rejected it. 18 [JS 14.] 19 28, 2006, Dr. Tamayo made the following functional assessment: In an internal medicine examination conducted on December 20 The claimant is restricted in pushing, pulling, lifting, and 21 carrying to about 50 pounds occasionally and about 25 pounds 22 frequently. 23 walking, the claimant is able to stand and walk 6 hours out of an 24 8-hour workday with normal breaks. 25 restrictions, squat occasionally because of alleged left groin 26 discomfort. 27 hands. 28 Sitting is unrestricted. In terms of standing and He is able to kneel without There is no functional impairment observed on both [AR 172.] 9 1 In the administrative decision, the ALJ described Dr. Tamayo s 2 evaluation but did not explicitly state whether it was rejected or 3 accepted. [AR 15.] 4 for the full range of medium work, which was wholly consistent with 5 Dr. Tamayo s opinion. [AR 13.] 6 favorable to Plaintiff s claim, Plaintiff appears to assert that a 7 portion of the opinion, stating that Plaintiff could stand and walk 8 six hours out of an eight-hour workday with normal breaks, reflected 9 an erosion of Plaintiff s ability to perform a full range of medium However, the ALJ found that Plaintiff had an RFC Although Dr. Tamayo s opinion was not 10 work that was not properly developed as an issue. [JS 16.] 11 the Commissioner s standard definition of medium work includes an 12 ability to stand and walk within limits identical to those expressed 13 in Dr. Tamayo s opinion. 14 WL 31251 at *6 ( A full range of medium work requires standing or 15 walking, off and on, for a total of approximately 6 hours in an 8-hour 16 workday in order to meet the requirements of frequent lifting or 17 carrying objects weighing up to 25 pounds ). 18 is without merit. However, Social Security Ruling ( SSR ) 83-10, 1983 Accordingly, this claim 19 G. 20 In the final claim, Plaintiff asserts that, in light of his non- ISSUE FOUR: VOCATIONAL EXPERT TESTIMONY 21 exertional limitations, such as his depression, limited education, 22 lack of proficiency in English, and symptoms of Hepatitis C, the ALJ 23 erred by not obtaining the testimony of a vocational expert at the 24 hearing before finding Plaintiff not disabled. [JS 17.] 25 At step five of the five-step disability evaluation, the burden 26 shifts to the Commissioner to prove that the claimant is capable of 27 engaging in other jobs that exist in substantial numbers in the 28 national economy. Valentine v. Commissioner Social Sec. Admin., 574 10 1 F.3d 685, 689 (9th Cir. 2009). There are two ways for the 2 Commissioner to meet this burden: (1) by the testimony of a vocational 3 expert or (2) by reference to the Medical-Vocational Guidelines 4 ( grids ). 5 1219, 1223 n. 4 (9th Cir. 2009)(citing Tackett v. Apfel, 180 F.3d 6 1094, 1099 (9th Cir. 1999)). 7 suffering from an impairment which manifests itself by limitations in 8 meeting the strength requirements of jobs ( exertional limitations ); 9 they may not be fully applicable where the nature of a claimant s Bray v. Commissioner of Social Security Admin., 554 F.3d The grids are predicated on a claimant 10 impairment does not result in such limitations ( non-exertional 11 limitations ). 12 2006). 13 grids at step five, but only when the grids completely and accurately 14 represent a claimant s limitations. 15 1063, 1069 (9th Cir. 2006); Moore v. Apfel, 216 F.3d 864, 869 (9th 16 Cir. 2000); Tackett v. Apfel, 180 F.3d at 1101 ( In other words, a 17 claimant must be able to perform the full range of jobs in a given 18 category ). 19 Lounsberry v. Barnhart, 468 F.3d 1111, 1115 (9th Cir. The Commissioner s need for efficiency justifies use of the Widmark v. Barnhart, 454 F.3d Significant non-exertional impairments . . . may make reliance 20 on the grids inappropriate and require the testimony of a vocational 21 expert. 22 be sufficiently severe so as to significantly limit the range of work 23 permitted by the claimant s exertional limitations. 24 Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007)(quotation omitted). 25 example, the severity of the limitations at step five that would 26 require use of a vocational expert must be greater than the severity 27 of impairments determined at step two. Id. (recognizing that step two 28 requires a lower showing of severity than step five and therefore, a Id., 180 F.3d at 1101-02. The non-exertional limitation must 11 Hoopai v. For 1 finding at step two that an impairment is severe does not necessarily 2 require that the ALJ seek assistance of vocational expert at step 3 five). 4 recognition that the claimant has met the threshold requirement for a 5 severe disability at step two. Id. 6 Thus, built into the step-five determination and the grids is In this case, the record does not contain evidence of a 7 significant non-exertional limitation that made reliance on the grids 8 inappropriate and required the testimony of a vocational expert. 9 noted initially, the ALJ s step two finding did not include a finding 10 that Plaintiff s alleged depression, memory or language problem was a 11 severe impairment, which Plaintiff does not dispute here. 12 Plaintiff did not make a threshold showing that these asserted non- 13 exertional impairments were severe at step two of the five-step 14 inquiry, such limitations are not sufficiently severe to require 15 vocational expert testimony at step five. 16 also Valenzuela v. Astrue, 2008 WL 477833 at *17 (D. Ariz. 17 2008)( [T]he ALJ s conclusion at step two that Plaintiff s depression 18 was not severe prevented later consideration as to whether Plaintiff s 19 limitations of mental functioning were sufficiently severe so as to 20 make the grids inapplicable at step five )(applying Hoopai v. Astrue). 21 Moreover, Plaintiff submitted no medical evidence of depression, 22 memory problems or limitations from Hepatitis C, and the ALJ 23 reasonably rejected Plaintiff s claim that he lacked ability to 24 communicate in English as not fully credible. 25 F.3d at 869 (finding that ALJ correctly enlisted the help of a VE 26 because the claimant had both exertional and nonexertional 27 limitations ). 28 significant or sufficiently severe limitation calling into question As Because Id., 499 F.3d at 1075; see Cf. Moore v. Apfel, 216 A review of the record revealed no evidence of a 12 1 the ALJ s conclusion that Plaintiff is capable of performing a full 2 range of jobs in the medium work category. 3 must be denied. 4 V. Accordingly, this claim 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: November 6, 2009 ___________/S/___________________ CARLA M. WOEHRLE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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