Yolanda Valle v. Michael J. Astrue, No. 5:2009cv00735 - Document 18 (C.D. Cal. 2010)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. See order for further details. (jy)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 YOLANDA VALLE, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) Case no. EDCV 09-0735-RC OPINION AND ORDER 15 Plaintiff Yolanda Valle filed a complaint on April 16, 2009, 16 seeking review of the Commissioner s decision denying her application 17 for disability benefits. 18 answered the complaint, and the parties filed a joint stipulation on 19 November 23, 2009. On October 2, 2009, the Commissioner 20 BACKGROUND 21 22 On July 6, 2006,1 plaintiff, who was born on April 8, 1951, 23 applied for disability benefits under Title II of the Social Security 24 Act ( Act ), 42 U.S.C. § 423, and the Supplemental Security Income 25 program ( SSI ) of Title XVI of the Act, claiming an inability to work 26 27 28 1 On April 22, 2002, plaintiff previously applied for disability benefits, and on June 6, 2003, after an administrative hearing, plaintiff was found not to be disabled. Certified Administrative Record ( A.R. ) 38-46. 1 since June 7, 2003,2 due to right arm and right foot injuries. 2 91-102, 110. 3 October 10, 2006, and were denied again on February 28, 2007, 4 following reconsideration. 5 requested an administrative hearing, which was held before 6 Administrative Law Judge Thomas P. Tielens ( the ALJ ) on June 9, 7 2008. 8 decision finding plaintiff is not disabled. 9 plaintiff appealed this decision to the Appeals Council, which denied 10 A.R. The plaintiff s applications were initially denied on A.R. 21-37, 65. A.R. 52-56, 60-64. The plaintiff then On September 16, 2008, the ALJ issued a review on February 11, 2009. A.R. 10-20. The A.R. 1-9. 11 12 DISCUSSION 13 I 14 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 15 review the decision denying plaintiff disability benefits to determine 16 if his findings are supported by substantial evidence and whether the 17 Commissioner used the proper legal standards in reaching his decision. 18 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. 19 Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 20 the Commissioner s findings are supported by substantial evidence, 21 [this Court] must review the administrative record as a whole, 22 weighing both the evidence that supports and the evidence that 23 detracts from the Commissioner s conclusion. 24 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 246 F.3d 1195, 25 1201 (9th Cir. 2001). In determining whether Reddick v. Chater, 157 Where the evidence can reasonably support 26 2 27 28 Plaintiff initially claimed an onset date of October 24, 2001, A.R. 91, 98, but later amended her onset date to June 7, 2003. A.R. 28. 2 1 either affirming or reversing the decision, [this Court] may not 2 substitute [its] judgment for that of the Commissioner. 3 Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 552 U.S. 1141 4 (2008); Vasquez, 572 F.3d at 591. Parra v. 5 6 The claimant is disabled for the purpose of receiving benefits 7 under the Act if she is unable to engage in any substantial gainful 8 activity due to an impairment which has lasted, or is expected to 9 last, for a continuous period of at least twelve months. 42 U.S.C. 10 §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 11 The claimant bears the burden of establishing a prima facie case of 12 disability. 13 cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 14 1289 (9th Cir. 1996). Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), 15 16 The Commissioner has promulgated regulations establishing a five- 17 step sequential evaluation process for the ALJ to follow in a 18 disability case. 19 the ALJ must determine whether the claimant is currently engaged in 20 substantial gainful activity. 21 If not, in the Second Step, the ALJ must determine whether the 22 claimant has a severe impairment or combination of impairments 23 significantly limiting her from performing basic work activities. 24 C.F.R. §§ 404.1520(c), 416.920(c). 25 must determine whether the claimant has an impairment or combination 26 of impairments that meets or equals the requirements of the Listing of 27 Impairments ( Listing ), 20 C.F.R. § 404, Subpart P, App. 1. 28 C.F.R. §§ 404.1520(d), 416.920(d). 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 If so, in the Third Step, the ALJ 20 If not, in the Fourth Step, the 3 1 ALJ must determine whether the claimant has sufficient residual 2 functional capacity despite the impairment or various limitations to 3 perform her past work. 4 in Step Five, the burden shifts to the Commissioner to show the 5 claimant can perform other work that exists in significant numbers in 6 the national economy. 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, 20 C.F.R. §§ 404.1520(g), 416.920(g). 7 8 9 Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since 10 her alleged onset date. (Step One). The ALJ then found plaintiff has 11 the following severe impairments: 12 injury in 1999, status post elbow surgery in 2000; and a history of 13 right ankle injury in 2000, status post ankle surgery in 2002 3 (Step 14 Two); however, she does not have an impairment or combination of 15 impairments that meets or equals a Listing. 16 the ALJ determined plaintiff is able to perform her past relevant work 17 as a teacher s aide and general office clerk; therefore, she is not 18 disabled. a history of upper extremity (Step Three). Finally, (Step Four). 19 20 21 II A claimant s residual functional capacity ( RFC ) is what she can 22 still do despite her physical, mental, nonexertional, and other 23 limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); 24 25 26 27 28 3 As noted in the June 16, [sic] 2003 hearing decision, the [plaintiff] injured her right elbow while working as a teacher s aide in 1999 and underwent elbow surgery in 2000. The [plaintiff] injured her right ankle in a fall while working as a teacher s aide in 2000 and underwent ankle surgery in 2002. A.R. 16. 4 1 see also Valentine v. Comm r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th 2 Cir. 2009) (RFC is a summary of what the claimant is capable of doing 3 (for example, how much weight he can lift) ). 4 plaintiff has the RFC to perform light work or, alternately, a limited 5 range of light work,4 as follows: Here, the ALJ found 6 7 she is limited to occasional climbing, bending, stooping, 8 kneeling, crouching, and crawling; she is unable to climb 9 ladders, ropes, and scaffolds; she is limited to frequent 10 (not constant) gripping and fine manipulations with the 11 right (dominant) upper extremity; and she must avoid 12 concentrated exposure to heat, cold, and hazards such as 13 heights and moving machinery. 14 15 A.R. 17. However, plaintiff contends the RFC is not supported by 16 substantial evidence because the ALJ erroneously determined she was 17 not a credible witness and improperly failed to consider the type, 18 dosage, and side effects of her medications. 19 // 20 21 22 23 24 25 26 27 28 4 Under Social Security regulations, [l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the ability to do substantially all of these activities. 20 C.F.R. §§ 404.1567(b), 416.967(b). [T]he full range of light work requires standing or walking for up to two-thirds of the workday. Gallant v. Heckler, 753 F.2d 1450, 1454 n.1 (9th Cir. 1984); SSR 83-10, 1983 WL 31251, *6. 5 1 A. Credibility: 2 At the administrative hearing, plaintiff testified she is unable 3 to work due to pain in her hips and knees, right arm, elbow, hand and 4 fingers, and right leg and foot. 5 difficult for her to lift books, move desks and tables, and write for 6 long periods of time. 7 stand for only two to three minutes and slowly walk for five to ten 8 minutes before having to sit down. 9 cannot lift a gallon of milk, she can only lift a half gallon of milk A.R. 28-29. A.R. 28, 31. She also stated it is The plaintiff stated she can A.R. 30. She also testified she 10 with her left arm, and she uses her non-dominant left hand to brush 11 her teeth because the toothbrush hurts her right hand. A.R. 32-33. 12 13 Once a claimant has presented objective evidence that she suffers 14 from an impairment that could cause pain or other nonexertional 15 limitations,5 the ALJ may not discredit the claimant s testimony 16 solely because the degree of pain alleged by the claimant is not 17 supported by objective medical evidence. 18 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 19 882, 885 (9th Cir. 2004). 20 subjective complaints are not credible, he must provide specific, 21 cogent reasons for the disbelief. 22 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 23 635 (9th Cir. 2007). 24 claimant s credibility include reputation for truthfulness, Bunnell v. Sullivan, 947 Thus, if the ALJ finds the claimant s Greger v. Barnhart, 464 F.3d 968, Factors that an ALJ may consider in weighing a 25 26 27 28 5 While most cases discuss excess pain testimony rather than excess symptom testimony, rules developed to assure proper consideration of excess pain apply equally to other medically related symptoms. Swenson v. Sullivan, 876 F.2d 683, 687-88 (9th Cir. 1989). 6 1 inconsistencies in testimony or between testimony and conduct, daily 2 activities, and unexplained, or inadequately explained, failure to 3 seek treatment or follow a prescribed course of treatment. 4 F.3d at 636 (citations omitted); Thomas v. Barnhart, 278 F.3d 947, 5 958-59 (9th Cir. 2002). 6 establishing an objective basis for some degree of pain and related 7 symptoms, and no evidence affirmatively suggesting that the claimant 8 is malingering, the ALJ s reasons for rejecting the claimant s 9 testimony must be clear and convincing. Orn, 495 Furthermore, if there is medical evidence Morgan v. Comm r of the 10 Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Vasquez, 572 F.3d 11 at 591. 12 13 Here, the ALJ found plaintiff was not credible for several 14 reasons supported by the record.6 15 complaints of disabling pain were contradicted by the medical record, 16 which demonstrates plaintiff s condition is no worse now than it was 17 in 2003, when the Commissioner previously determined plaintiff was 18 capable of performing light work and was not disabled - both findings 19 plaintiff does not challenge here. 20 with the medical record is a sufficient basis for rejecting the 21 claimant s subjective testimony[,] Carmickle v. Comm r, Soc. Sec. 22 Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); see also Stubbs-Danielson First, the ALJ found plaintiff s A.R. 16-18, 42-46. Contradiction 23 24 25 26 27 28 6 Although the Court affirms the ALJ s adverse credibility determination, the ALJ also gave several reasons for this credibility determination that are not supported by substantial evidence in the record, including the findings that plaintiff has been consistently advised that she is able to return to her past work and plaintiff s complaints are not credible because she is able to attend classes and perform typical daily activities. A.R. 18. 7 1 v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (ALJ properly rejected 2 claimant s testimony, in part, because her allegations as to the 3 intensity, persistence and limiting effects of her symptoms are 4 disproportionate and not supported by the objective medical findings 5 nor any other corroborating evidence. ), and this finding is supported 6 by substantial evidence in the record. 7 8 Second, the ALJ found that plaintiff did not receive any medical 9 treatment for her right ankle for two years -- from May 2003 to May 10 2005 -- and plaintiff did not receive any medical treatment for her 11 right elbow after February 2004, A.R. 16, 18, and plaintiff does not 12 dispute these findings. 13 The ALJ is permitted to consider lack of treatment in his credibility 14 determination[,] Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 15 2005); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999); see also 16 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ( [A]n unexplained, 17 or inadequately explained, failure to seek treatment or follow a 18 prescribed course of treatment . . . can cast doubt on the sincerity 19 of the claimant s . . . testimony. ); thus, these findings also 20 support the ALJ s adverse credibility determination. See Jt. Stip. at 2:20-23, 3:14-6:2, 10:16-24. 21 22 Finally, the ALJ found that plaintiff has never been advised to 23 take any pain medication other than ibuprofen. 24 evidence of conservative treatment is sufficient to discount a 25 claimant s testimony regarding severity of an impairment[,] Parra v. 26 Astrue, 481 F.3d 742, 751 (9th Cir. 2007), cert. denied, 552 U.S. 1141 27 (2008); see also Meanel, 172 F.3d at 1114 (Claimant s claim that she 28 experienced pain approaching the highest level imaginable was 8 A.R. 18. Since 1 inconsistent with the minimal, conservative treatment that she 2 received. ); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) 3 (ALJ properly concluded claimant s excess pain testimony was not 4 credible because, among other reasons, claimant s treating physician 5 prescribed only conservative treatment, suggesting a lower level of 6 both pain and functional limitation ), this finding also supports the 7 ALJ s adverse credibility determination. 8 provide[] clear and convincing reasons for rejecting [plaintiff s] 9 testimony as not credible. 10 All of these findings Tommasetti v. Astrue, 533 F.3d 1035, 1037 (9th Cir. 2008). 11 12 B. Medication Side Effects: 13 [S]ide effects [of medication] can be a highly idiosyncratic 14 phenomenon and a claimant s testimony as to their limiting effects 15 should not be trivialized. 16 846 F.2d 581, 585 (9th Cir. 1988). 17 limitations, the ALJ must consider all factors that might have a 18 significant impact on a claimant s ability to work, including the side 19 effects of medication, Erickson v. Shalala, 9 F.3d 813, 817-18 (9th 20 Cir. 1993, and the ALJ may disregard a claimant s testimony about such 21 side effects only if he support[s] that decision with specific 22 findings similar to those required for excess pain testimony, as long 23 as the side effects are in fact associated with the claimant s 24 medication(s). Varney v. Sec y of Health & Human Servs., Thus, in determining a claimant s Varney, 846 F.2d at 585. 25 26 Here, plaintiff noted in a questionnaire that she takes Ibuprofen 27 600 mg., which makes her tired, drowsy, confused, slow, and 28 constipated, and gives her stomach cramps, A.R. 133; however, she did 9 1 not testify about these side effects at the administrative hearing, 2 and she points to nothing in the medical record showing she ever told 3 any treating or examining physician about these side effects. 4 the ALJ was not required to further consider any purported medication 5 side effects. 6 2006) (ALJ did not err when claimant did not report alleged side 7 effect of medication to any physician during relevant period); Thomas, 8 278 F.3d at 960 (ALJ properly rejected claimant s alleged side effects 9 when claimant offer[ed] no objective evidence that her medications Thus, See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 10 . . . caused these side effects, and ALJ found claimant lacked 11 credibility); Morillas v. Astrue, __ Fed. Appx. __, 2010 WL 1141520, 12 *3 (9th Cir. 2010) ( The ALJ . . . reasonably discounted [claimant s] 13 testimony about the side-effects of her medications [when] [n]othing 14 in the medical records reflected any complaint to her health providers 15 that her medications made her drowsy, and there was no evidence of any 16 assessed functional limitation from her medications. ). 17 is no merit to this claim by petitioner. Thus, there 18 19 20 III The ALJ determined in Step Four that plaintiff is able to perform 21 her past relevant work as a general office clerk and teacher s aide, 22 based on plaintiff s RFC, and the testimony of vocational expert 23 Steven Davis. 24 supported by substantial evidence because the ALJ posed an incomplete 25 hypothetical question to the vocational expert. 26 this claim. However, plaintiff contends this finding is not There is no merit to 27 28 It is indisputable that hypothetical questions to a vocational 10 1 expert must consider all of the claimant s limitations, Valentine, 574 2 F.3d at 690; Thomas, 278 F.3d at 956, and [t]he ALJ s depiction of 3 the claimant s disability must be accurate, detailed, and supported by 4 the medical record. 5 1999). 6 the claimant s limitations, then the expert s testimony has no 7 evidentiary value to support a finding that the claimant can perform 8 jobs in the national economy. 9 (9th Cir. 1995) (quoting Delorme v. Sullivan, 924 F.2d 841, 850 (9th 10 Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. If a vocational expert s hypothetical does not reflect all Matthews v. Shalala, 10 F.3d 678, 681 Cir. 1991)); Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001). 11 12 13 Here, the ALJ asked the vocational expert the following hypothetical question: 14 15 [W]ith an individual the same age as our Claimant, who has 16 the same educational background and past work experience. 17 . . . 18 in the light range, occasionally climbing, balancing, 19 stooping, kneeling, crouching [and] crawling. 20 asked to use ladders, ropes, or scaffolds. 21 avoid concentrated exposure to heat, cold[], and hazards, 22 such as . . . unprotected heights and moving machinery, and 23 would have limits to the right upper extremity, which is the 24 dominant extremity, limiting this hypothetical person to 25 frequent gripping and fine manipulation with that upper 26 extremity, not constant, but frequently. 27 hypothetical person perform any of our Claimant s past work? 28 I d ask you to consider that this person could work // 11 Should not be Would need to Could this 1 A.R. 35. 2 work as a general office clerk or teacher s aide. The vocational expert responded that such a person could A.R. 35-36. 3 4 The plaintiff complains that the ALJ s hypothetical question to 5 the vocational expert did not include the purported side effects of 6 plaintiff s medication. 7 nothing in the record supports plaintiff s complaint of side effects, 8 and further determined that plaintiff s credibility was properly 9 discredited, these purported side effects are not a limitation on However, since this Court has determined that 10 plaintiff, and the ALJ was not required to include them in the 11 hypothetical question to the expert. 12 Cir. 2006) ( The ALJ . . . is free to accept or reject restrictions 13 in a hypothetical question that are not supported by substantial 14 evidence. (quoting Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th 15 Cir. 2001)); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 16 ( [T]he ALJ did not err in omitting the other limitations that 17 claimant had claimed, but had failed to prove. ). 18 expert s testimony, thus, constitutes substantial evidence to support 19 the ALJ s Step Four determination that plaintiff can perform her past 20 relevant work. 21 1411, 1415 (9th Cir. 1993). See Greger, 464 F.3d at 973 (9th The vocational Roberts, 66 F.3d at 184; Tylitzki v. Shalala, 999 F.2d 22 23 ORDER 24 IT IS ORDERED that: (1) plaintiff s request for relief is denied; 25 and (2) the Commissioner s decision is affirmed, and Judgment shall be 26 entered in favor of defendant. 27 DATE: June 7, 2010 28 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\09-0735.mdo - 6/7/10 12

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