Robin T Sexton v. Michael J Astrue, No. 5:2009cv01754 - Document 19 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal:IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (dhl)
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Robin T Sexton v. Michael J Astrue Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ROBIN T. SEXTON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ______________________________) NO. EDCV 09-01754 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Robin T. Sexton ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner ) denying her application 24 for Supplemental Security Income ( SSI ). 25 pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 26 United States Magistrate Judge. 27 decision of the Commissioner is AFFIRMED. The parties consented, For the reasons stated below, the 28 Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for SSI on October 19, 2006 5 (Administrative Record ( AR ) 11, 137), alleging a disability due to a 6 nerve disorder, severe ankle, and diabetes (AR 147). 7 disability onset date of September 11, 2006. (AR 11, 137). She alleged a 8 9 The Agency denied Plaintiff s claim for SSI initially on March 13, 10 2007. (AR 58). This denial was upheld upon reconsideration. 11 On October 10, 2008, the ALJ conducted a hearing, at which Plaintiff was 12 represented by counsel, to review Plaintiff s claim. 13 denied benefits on December 10, 2008. (AR 22). Plaintiff sought review 14 of the ALJ s decision before the Appeals Council, which granted review 15 but denied benefits on July 23, 2009. (AR 25). (AR 65). The ALJ (AR 1). 16 17 Plaintiff commenced the instant action on September 18, 2009. 18 Plaintiff filed a Memorandum in Support of the Complaint ( Plaintiff s 19 Memo. ) on March 23, 2010. 20 Support of Defendant s Answer ( Commissioner s Memo. ) on April 21, 21 2010. 22 decision. The Commissioner filed a Memorandum in Plaintiff declined to file a Reply. The matter is now ready for 23 24 III. 25 FACTUAL BACKGROUND 26 27 28 Plaintiff was born on January 16, 1961 and was forty-seven years old at the time of the hearing. (AR 20, 30, 137). 2 She has an eleventh 1 grade education. (AR 186). She worked in a restaurant preparing food 2 in 1999 and at a department store in the ladies wear department and 3 stock room in 2004.1 4 2004. (AR 142, 154-56). She last worked on June 1, (AR 147). 5 6 A. Plaintiff s Medical History 7 1. 8 Treating Physicians Records 9 10 In 2005, prior to the disability onset date, Plaintiff s records 11 show that she sought mental health treatment, including prescriptions 12 for Prozac, Lexapro and Ambian. 13 also reported a history of alcohol and marijuana abuse. 14 244, 252). 15 substance abuse counseling. 16 abuse issues in a May 2005 interview with Riverside County Department 17 of Mental Health, Plaintiff reports a history of alcohol and cannabis 18 abuse. 19 one of Plaintiff s diagnoses was alcohol abuse [illegible] R/O [rule 20 out] Sedative Dependence. (AR 206, 217, 222, 241). Plaintiff (AR 207, 209, In April 2005, it was recommended that Plaintiff enter into (AR 244). (AR 251). In describing her substance In an April 29, 2005, Participant Intake Document, (AR 252, 256). 21 22 In a May 5, 2005 appointment with her social worker, Plaintiff 23 reported that her anxiety had gone down and she feels fine. (AR 24 247). 25 application which was apparently based upon an alleged impairment of She reported that she was appealing the denial of an earlier SSI 26 27 28 1 Plaintiff testified that she last worked in 2005. (AR 26). The ALJ similarly states that Plaintiff last worked in 2005. (AR 15). This inconsistency is irrelevant, however, to the Court s analysis. 3 1 diabetes. (AR 247). Plaintiff reported that she had help now with 2 her SSI process and feels confident that she will get SSI. (Id.). 3 4 On June 30, 2005, during an interview with her social worker, 5 Plaintiff stated that the one thing that was making her anxious, her 6 ex-boyfriend, is gone out of her life and she is not feeling anxious 7 or depressed. 8 saying that she wants to stay on welfare until she can start to go to 9 school and earn an LVN . . . [Plaintiff] talked about looking for work, 10 although does not really want to work now because she will not be doing 11 what she wants to do and when she starts school, will not have any time 12 with her children . . . [Plaintiff] did say that she would be willing 13 to do independent job search until her schooling starts. (AR 232). The social worker reported Plaintiff as (AR 232). 14 15 On July 21, 2005, Plaintiff reported decreased anxiety and no 16 depression. (AR 227). On September 16, 2005, Plaintiff reported that 17 everything was fine. 18 physician reported that Plaintiff was non-compliant with appointments 19 and had discontinued her medication. (AR 215). On October 3, 2005, Plaintiff s (AR 214) 20 21 Plaintiff fractured her ankle on September 11, 2006. (AR 268, 22 319). On September 29, 2006, an open reduction and internal fixation 23 of left ankle bimalleolar fracture operation was performed. 24 Plaintiff was released from the hospital on the day of the operation 25 with a good prognosis for recovery and instructions to follow-up in the 26 orthopedic clinic in two weeks. 27 Plaintiff s physician reported no edema, exposed metal, or sign of 28 infection, and noted that sensation was intact. (AR 269, 270). 4 (AR 268). On December 22, 2006, (AR 262). On July 18, 1 2007, an emergency room physician reported some tenderness and pain when 2 the left ankle was moved. 3 discoloration or warmth, and a small amount of clear drainage from 4 around the left lateral malleolus. 5 posterior splint, crutches, and a prescription for Vicodin. 6 She was told to follow-up with her orthopedic surgeon. (AR 377). There was minimal swelling, no (Id.). Plaintiff was given a (AR 378). (Id.). 7 8 In another emergency room visit on October 3, 2007, the physician 9 reported mild soft tissue swelling to the medial and lateral malleolus 10 with no clear deformity. 11 refill. No sign of neurovascular compromise. (AR 387). Plaintiff was 12 given pain medication, a posterior splint, and crutches, and was then 13 released. 14 tissue swelling and no change from October 3, 2007. (Id.). Distal pulses are intact. Good capillary A check up on October 30, 2007 reported diffuse soft (AR 403). 15 16 Plaintiff sought treatment in the emergency room on November 11, 17 2007, for a left toe injury. (AR 404). She was diagnosed with a 18 partially avulsed left first toenail and sent home with medication. (AR 19 405). 20 foot pain did not reveal abnormalities in the ankle or foot. 21 414, 426, 434, 447, 458, 469-70). 22 on April 23, 2008 with a rapid heartbeat. 23 and released. Later emergency room visits for conditions unrelated to ankle or (See AR Plaintiff visited the emergency room (AR 447). She was treated (AR 448). 24 25 A June 13, 2008 post-operative X-ray of the ankle found the ankle 26 aligned, with asymmetric moderate posttraumatic osteoarthritis. 27 359). 28 5 (AR 1 B. Consultative Examinations 2 3 Dr. Carl B. Sainten, an internist, examined Plaintiff and issued 4 his report on January 27, 2007. 5 Plaintiff s ankle had been operated on after a fracture and several pins 6 were placed in the ankle. 7 November 30, 2006, the site became infected. 8 treated with antibiotics at least four times before the wound began to 9 heal. (Id.). (Id.). (AR 277). Dr. Sainten reported that After one of the pins was removed on (Id.). Plaintiff was Plaintiff complained of pain even when the ankle was not 10 bearing weight and more severe pain in cold weather. (AR 278). 11 reported difficulty walking and stated she was incapable of doing the 12 usual household chores such as cleaning, cooking, standing, sitting, 13 bathing, and climbing up and down stairs. 14 Plaintiff, she needed either a wheelchair or a four point walker for 15 mobility. (Id.). She According to (Id.). 16 17 Dr. Sainten found no evidence of edema or chronic stasis changes 18 in Plaintiff s ankles. The range of motion in her left ankle was 19 restricted. (AR 281). Plaintiff s sensation was decreased to vibration 20 in the left ankle but otherwise intact. 21 gait, Dr. Sainten reported that Plaintiff could not stand, walk, stand 22 on heels and toes, or perform tandem gait. 23 functional assessment, he found: (Id.). Regarding Plaintiff s (Id.). In Dr. Sainten s 24 25 [Plaintiff] can lift or carry 26 occasionally and less than ten pounds frequently. [Plaintiff] 27 can stand or walk for two hours in an eight hour day. 28 [Plaintiff] can sit for six hours in an eight hour day. 6 less than ten pounds 1 Pushing and pulling is limited in the lower extremities as 2 noted. 3 4 Climbing, stooping, kneeling and crouching should be limited 5 to frequently. 6 7 There are no manipulative, 8 visual, communicative or environmental limitations. 9 10 (AR 282). 11 12 Dr. Romualdo R. Rodriguez, a psychiatrist, examined Plaintiff and 13 issued a report on February 18, 2007. 14 complaint was anxiety, which she treated with Valium. 15 Plaintiff s stressors included her son s discontinuation of his ADHD 16 medication and the breakup of an emotionally abusive five-year long 17 romantic relationship. 18 obsessive-compulsive disorder. (Id.). Plaintiff denied drug or alcohol 19 problems. 20 bathe herself, run errands and go to the store with help, and cook and 21 participate in household chores with help. 22 stated that she could leave home alone, handle her own money, and pay 23 her own bills. 24 family, 25 relationship with others. 26 television, 27 spending time with her children. (AR 296). a fair (AR 295). Plaintiff s chief (AR 294). Plaintiff also reported symptoms of Plaintiff reported that she was able to dress and (Id.). the (Id.). Plaintiff further Plaintiff reported a good relationship with relationship using (AR 294). with (Id.). friends and neighbors, and no She spent her time reading, watching telephone, eating, (Id.). 28 7 caring for herself, and 1 Dr. Rodriguez found Plaintiff cooperative with no psychomotor 2 agitation or retardation and 3 manipulation. 4 relevant and non-delusional. 5 psychotic thought content; suicidal, homicidal, or paranoid ideation; 6 or recent hallucinations. 7 and hopeless at times, but not worthless or guilty. (Id.). Plaintiff s 8 speech was normal, she was alert and oriented, and appeared to be of 9 average intelligence. (AR 296-97). evidence of exaggeration or Plaintiff was coherent and organized; (AR 297). (Id.). (Id.). no Plaintiff had no bizarre or Plaintiff reported feeling helpless She displayed no problems with memory, 10 fund of knowledge, or concentration and calculation. (AR 297-98). 11 Rodriguez noted that Plaintiff was unable to interpret the proverb, 12 people who live in glass houses shouldn t throw stones, and further 13 found that Plaintiff s insight into her problems was problematic. (AR 14 298). Dr. Rodriguez diagnosed Plaintiff with relationship problems and 15 an anxiety disorder not otherwise specified and assigned Plaintiff a GAF 16 of 70. (Id.). No functional limitations were found. Dr. (AR 299). 17 18 C. State Agency Review Physicians 19 20 Dr. R.A. Bitonte issued a Physical Residual Functional Capacity 21 Assessment on February 13, 2007. (AR 289). Dr. Bitonte established the 22 following exertional limitations: Plaintiff could occasionally lift 23 and/or carry twenty pounds; frequently lift and/or carry ten pounds; 24 stand and/or walk about six hours in an eight-hour work day; sit about 25 six hours in an eight-hour work day; and was not limited in pushing 26 and/or pulling, except as noted. 27 limitations were the following: She could occasionally climb a ramp or 28 stairs, stoop, kneel, crouch, and crawl; she could never climb a ladder, (AR 286). 8 Plaintiff s postural 1 rope, or scaffolds. (AR 287). There were no established manipulative, 2 visual, communicative, or environmental limitations. (AR 287-88). 3 4 Dr. K.J. Loomis performed a psychiatric review on March 1, 2007, 5 which found Plaintiff s anxiety-related disorder not severe. 6 There were no functional limitations in the following categories: 7 restricting activities of daily living, difficulties in maintaining 8 social functioning, and repeated episodes of decompensation, each of 9 extended 10 duration. (AR 310). (AR 302). Plaintiff had mild limitation in difficulties in maintaining concentration, persistence, or pace. (Id.). 11 12 D. Third-Party Function Report 13 14 Gloria Eselema, a friend of Plaintiff s, completed a third-party 15 function report on November 12, 2006. (AR 157). Eselema reported that 16 Plaintiff bathes herself in bed, dresses herself on her bed, cannot 17 walk, can use a wheelchair only with help, uses a bed pan, and leaves 18 her apartment only once a month for appointments with doctors. (AR 157, 19 160). 20 eat, but in response to a later question stated that Plaintiff can feed 21 herself. 22 to take care of personal needs and grooming or to take medication. 23 159). 24 did no household chores or yard work. (AR 159-60). She was also unable 25 to drive because of her leg. (AR 160). According to Eselema, Plaintiff 26 needed help paying bills, although she could count change and use money 27 orders. At one point Eselema asserted that Plaintiff needs assistance to (AR 157, 158). Plaintiff reportedly did not need reminders (AR Eselema reported that Plaintiff could not cook for herself and (Id.). Eselema asserted that Plaintiff s hobby was watching 28 9 1 television and her only social activities were telephone based. 2 (AR 161). 3 4 Eselema reported that Plaintiff had no problems getting along with 5 others, including with authority figures. (AR 162, 163). 6 asserted that the following activities were affected by Plaintiff s 7 ankle injury: squatting, standing, walking, kneeling, stair climbing, 8 completing tasks, and concentration. 9 asserted that Plaintiff could pay attention all day, finish what she (AR 162). Eselema However, Eselema also 10 started, and follow written and spoken directions very well. (Id.). 11 Plaintiff also handled changes in routine very well, but did not handle 12 stress well. (AR 163). 13 14 E. Plaintiff s Written Reports and Hearing Testimony 15 16 Plaintiff s Disability Report of October 30, 2006 (AR 145), 17 reflects that subsequent to the ankle surgery, she was bedridden and 18 could barely get around. (AR 147). 19 20 Plaintiff s November 13, 2006 Function Report indicates that she 21 was bedridden and needed assistance to use a bed pan, sit up, take a 22 bath, sit in a wheelchair, prepare meals, wash dishes, and clean house. 23 (AR 165, 166, 167). She stated that she wakes at 5 A.M., naps from noon 24 until 2 P.M. and retires for the evening between six P.M. and 10 P.M. 25 (Id.). 26 166). 27 herself without assistance. 28 left the house to see doctors. (AR 168). She shopped by phone. Plaintiff asserted she could not sleep because of pain. (AR She asserted that she could dress, care for her hair, and feed (AR 166). 10 Plaintiff stated that she only (Id.). 1 She need[ed] someone to go pay [her] bills for [her] and had no money 2 in saving[s]. 3 television, and telephoned with relatives and friends. (AR 169). 4 was not social since her ankle injury. Regarding her 5 physical abilities, Plaintiff asserted that her injuries or conditions 6 affected 7 climbing, and completing tasks. 8 walk. 9 written instructions, got along with authority figures, and could handle (Id.). squatting, (Id.). Plaintiff asserted that she read, watched bending, standing, (Id.). (AR 170). walking, kneeling, She stair- She stated that she could not She finished what she began, could follow spoken and 10 changes in routine. (AR 170-71). She did not handle stress very well, 11 had high anxiety, and stated that she must use crutches, a wheelchair 12 and/or a brace/splint every day. (AR 171). 13 14 On June 24, 2007, Plaintiff filled out an Exertional Daily 15 Activities Questionnaire. 16 operation and shortness of breath. 17 assistance with everything, including getting into the shower and 18 using the toilet. 19 in her wheelchair, but had no activities because of her heartbeat. 20 (Id.). 21 (AR 184). 22 grocery shopping, clean her house, drive a car, work on cars, or do yard 23 work. 24 to one and a half hours per day. 25 crutches and a wheelchair every day. (Id.). In it, she reported pain due to her ankle (AR 183). She asserted she needed She asserted that she could cook for herself She reported she could not walk, climb stairs, lift, or carry. According to the questionnaire, Plaintiff did not do her own (Id.). She slept five to six hours per night and napped for up (AR 185). She claimed to require (Id.). 26 27 28 In a later Disability Report, Plaintiff reported osteoarthritis in both her knees. (AR 193). She also stated that she could only walk 11 1 slowly with crutches and that she had a limp, needed help with house 2 work and occasionally with cooking. 3 that she needed help in and out of the shower and help washing her 4 clothes. 5 198). (AR 197). (AR 197). She further reported Plaintiff added that she had a heart problem. (AR 6 7 On October 10, 2008, Plaintiff appeared at a hearing before the 8 ALJ. (AR 26). She stated that her previous work consisted of two 9 months of work in 2000 at KMart in the ladies wear department and work 10 in 2005 as a cook s helper.2 11 applied for work since her injury. 12 she could not walk or stand for long periods of time; limped; required 13 help to mop the floor, vacuum and sometimes to remove her shoes and 14 socks. 15 (AR 29) (Id.). (Id.). She testified that she had not (AR 28). According to Plaintiff, Plaintiff reported no problems with drugs or alcohol. 16 17 Plaintiff described her ankle injury and operation, which placed 18 pins and screws and different hardware in the ankle to hold things 19 together. 20 been removed) are permanent, and Plaintiff also has a permanent plate 21 in her leg. (AR 31). Plaintiff continued to experience pain in her leg 22 and ankle. 23 for her to stand and walk for long periods of time. 24 asserted that on good days, she could go shopping using a wheelchair; (AR 30-31). (Id.). All of the screws except for one (which has Plaintiff repeated that it was generally difficult (AR 34). She 25 26 27 28 2 This conflicts with Plaintiff s Work History Report of November 12, 2006, which states that she worked in a restaurant in 1999 and at Kmart in 2004. (See AR 154). As noted above, however, this inconsistency is irrelevant to the Court s analysis. 12 1 on bad days she limped and it felt like the pins and screws were 2 coming out of her ankle. 3 some days she limped, and some days she was able to walk, although not 4 completely normally. 5 (AR 36). 6 required her to sit throughout the work day, because she needed to stand 7 and move around periodically. (AR 35). (AR 40). Plaintiff further testified that She took aspirin and Vicodin for pain. Plaintiff was dubious about whether she could do work that (AR 37-38). 8 9 Plaintiff testified that medication she took for her heart in the 10 middle of the day made her drowsy and she sometimes had to lay down or 11 take a nap. 12 pain in her ankle. 13 stated that her arrhythmia sometimes required a visit to the emergency 14 room. 15 42). 16 a couple of months, but was not currently seeing one, although she 17 need[s] to call and make an appointment. 18 fractured a finger in her right hand in May 2008. 19 Plaintiff asserted that she has had troubles with anxiety since her 20 ankle operation, but was not taking medication for anxiety. (AR 38). (AR 40). She also sometimes had to lay down because of (AR 39). Regarding her heart problems, Plaintiff She also reported osteoarthritis in both knees. (AR Plaintiff stated that she had seen a psychiatrist in the past for (AR 42-43). She also (AR 43, 44). (AR 44). 21 22 Plaintiff reported that she typically spent much of the day on the 23 phone making appointments with doctors. 24 housework and cooked and her two sons did heavy housework and sometimes 25 helped her cook. 26 at noon because of the heart medication. 27 sat down for about three-quarters of her waking hours. (AR 47-48). She 28 did not carry her medication, including her pain medication, with her, (AR 46). (AR 45). She did light She reported that she napped for one hour 13 (AR 47). She stated that she 1 but took her medications at set times during the day. 2 Plaintiff reported that she was able to drive. (AR 48-49). (AR 50). 3 4 F. Vocational Expert s Testimony 5 6 Vocational expert Stephen M. Berry also testified at the hearing. 7 The ALJ asked him to assume a non-illiterate individual with an eleventh 8 grade education who can be on her feet for two hours out of an eight- 9 hour work day, but not all at one time. (AR 52). Furthermore, the 10 hypothetical individual could sit, but would need to stretch every 11 thirty to sixty minutes, could not lift more than ten pounds, would have 12 to lie down during the lunch break, and would miss work one to two 13 times per month. 14 tasks. 15 the facts above and no past relevant work, there were unskilled jobs 16 that could be performed. (Id.). The vocational expert identified order 17 clerk and charge account clerk, and asserted there were other jobs that 18 could be performed which he did not identify. (Id.). (Id.). She would be limited to simple, repetitive The ALJ asked the vocational expert whether, assuming 19 20 Plaintiff s attorney then asked the vocational expert to add the 21 further limitation that the individual would have to elevate her leg to 22 hip height at will. 23 individual would still be able to perform the previously identified 24 jobs. 25 would need unscheduled breaks for about four hours out of the work week, 26 the vocational expert indicated that competitive employment could not 27 be sustained. (AR 53-54). (Id.). The vocational expert opined that the When Plaintiff s attorney added that the person (AR 54). 28 14 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate 5 a medically determinable physical or mental impairment that prevents him 6 from engaging in substantial gainful activity3 and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 42 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 10 incapable of performing the work he previously performed and incapable 11 of performing any other substantial gainful employment that exists in 12 the national economy. 13 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 15 To decide if a claimant is entitled to benefits, an ALJ conducts 16 a five-step inquiry. 17 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 18 19 (1) Is the claimant presently engaged in substantial gainful 20 activity? If so, the claimant is found not disabled. 21 If not, proceed to step two. 22 23 (2) Is the claimant s impairment 24 claimant is found not disabled. 25 severe? If not, the If so, proceed to step three. 26 27 28 3 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 15 1 (3) Does the claimant s impairment meet or equal one of a 2 list of specific impairments described in 20 C.F.R. Part 3 404, Subpart P, Appendix 1? 4 found disabled. If so, the claimant is If not, proceed to step four. 5 6 (4) Is the claimant capable of performing her past work? 7 so, the claimant is found not disabled. 8 If If not, proceed to step five. 9 10 (5) Is the claimant able to do any other work? 11 claimant is found disabled. 12 If not, the If so, the claimant is found not disabled. 13 14 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 15 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 16 Cir. 2001) (citations omitted). 17 18 The claimant has the burden of proof at steps one through four, and 19 the Commissioner has the burden of proof at step five. Bustamante, 262 20 F.3d at 953-54. 21 establishing an inability to perform past work, the Commissioner must 22 show that the claimant can perform some other work that exists in 23 significant numbers in the national economy, taking into account the 24 claimant s residual functional capacity ( RFC ),4 age, education, and If, at step four, the claimant meets his burden of 25 26 27 28 4 Residual functional capacity is the most [one] can still do despite [one s] limitations and represents an assessment based on all the relevant evidence in [one s] case record. 20 C.F.R. §§ 404.1545(a), 416.945(a). 16 1 work experience. 2 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 3 do so by the testimony of a VE or by reference to the Medical-Vocational 4 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 5 (commonly known as the Grids ). 6 claimant 7 limitations, the Grids are inapplicable and the ALJ must take the 8 testimony of a VE. has Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at both exertional The Commissioner may Tackett, 180 F.3d at 1101. (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 9 10 V. 11 THE ALJ S DECISION 12 13 The ALJ employed the five-step sequential evaluation process and 14 concluded that Plaintiff was not disabled within the meaning of the 15 Social Security Act. (AR 11). At the first step, the ALJ observed that 16 Plaintiff had not engaged in substantial gainful activity since October 17 19, 2006. 18 impairments of status post open reduction and internal fixation of left 19 ankle bimalleolar fracture and repair of syndesmotic injury, post- 20 traumatic osteoarthritis of the left ankle, and obesity. 21 ALJ found Plaintiff s medically determinable mental impairment of 22 anxiety disorder, not otherwise specified, nonsevere. 23 third step, he found that her impairments did not meet one of the listed 24 impairments. 25 to perform a limited range of sedentary work. 26 lift ten pounds occasionally and frequently; sit for six hours and stand 27 for two hours out of an eight-hour work day, with the option to stand 28 and stretch every thirty to sixty minutes. (AR 13). (AR 14). Next, he found that Plaintiff had the severe (Id.). (Id.). The At the Plaintiff had the residual functional capacity 17 (Id.). (Id.). Plaintiff could Plaintiff could 1 occasionally climb, balance, stoop, kneel, crouch, and crawl. 2 Plaintiff needed to be able to lie down on her lunch break and would 3 miss work one to two times per month. 4 limited to simple, non-repetitive tasks due to her pain medication. 5 (Id.). 6 work. (Id.). (Id.). Finally, Plaintiff was At step four, the ALJ noted that Plaintiff had no past relevant (AR 20-21). 7 8 9 Considering Plaintiff s age, education, work experience, RFC, and the vocational expert s testimony, the ALJ found that jobs that 10 Plaintiff could perform, such as order clerk and charge account clerk, 11 existed in significant numbers in the national economy. 12 Plaintiff was therefore not disabled. (AR 21). (AR 21-22). 13 14 VI. 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner s decision to deny benefits. The court may set aside the 19 Commissioner s decision when his findings are based on legal error or 20 are not supported by substantial evidence in the record as a whole. 21 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 22 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 23 24 Substantial evidence is more than a scintilla, but less than a 25 preponderance. 26 which a reasonable person might accept as adequate to support a 27 conclusion. 28 a finding, the court must consider the record as a whole, weighing Id. Reddick, 157 F.3d at 720. It is relevant evidence To determine whether substantial evidence supports 18 1 both evidence that supports and evidence that detracts from the 2 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 3 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 4 reasonably support either affirming or reversing that conclusion, the 5 court may not substitute its judgment for that of the Commissioner. 6 Reddick, 157 F.3d at 720-21. If the evidence can 7 8 VII. 9 DISCUSSION 10 11 Plaintiff contends that there are two errors in the Commissioner s 12 decision. First, she claims that the residual functional capacity 13 assessment and hypothetical question the ALJ posed to the vocational 14 expert were not supported by substantial evidence. 15 at 2). 16 Plaintiff s subjective complaints. 17 discussed below, the Court disagrees with Plaintiff s contentions. (Plaintiff s Memo. Second, she claims that the ALJ did not properly consider (Id. at 4). For the reasons 18 19 20 A. The Residual Functional Capacity And Hypothetical Question Posed To The Vocational Expert Were Supported By Substantial Evidence 21 22 The ALJ s assessment of Plaintiff s RFC stated that Plaintiff had 23 residual functional capacity to perform a limited range of sedentary 24 work; 25 and stand for two hours out of an eight-hour work day, with the option 26 to stand and stretch every thirty to sixty minutes; and occasionally 27 climb, balance, stoop, kneel, crouch, and crawl. 28 asserted that Plaintiff needed to be able to lie down on her lunch break lift ten pounds occasionally and frequently; sit for six hours 19 (AR 14). It further 1 and would miss work one to two times per month. (Id.). Finally, 2 Plaintiff was limited to simple, non-repetitive tasks due to her pain 3 medication. (Id.). 4 5 The ALJ s hypothetical to the vocational expert asked the ALJ to 6 assume a non-illiterate individual with an eleventh grade education. 7 (AR 52). 8 eight-hour work day, but not all at one time; sit with the option to 9 stretch every thirty to sixty minutes; could not left more than ten 10 pounds; would need to lie down during the lunch break ; would miss work 11 one to two times per month; and would be limited to simple, repetitive 12 tasks. The individual could be on her feet for two hours out of an (Id.). 13 14 Plaintiff argues that the ALJ s RFC and the ALJ s hypothetical 15 question to the vocational expert were not supported by substantial 16 evidence because they failed to include all of Plaintiff s limitations. 17 (Plaintiff s Memo. at 2). 18 requires an option to stand and stretch more often than every thirty to 19 sixty minutes and lie down more often than merely on her lunch break. 20 (Id.). 21 more than three times per month due to her symptoms. 22 Finally, Plaintiff argues that when she takes pain medication, she would 23 be incapable of completing even simple, repetitive tasks. 24 \\ 25 \\ 26 \\ 27 \\ Specifically, Plaintiff argues that she In addition, Plaintiff maintains she would have to miss work 28 20 (Id. at 4). (Id.). 1 1. The Residual Functional Capacity Assessment Was Supported By Substantial Evidence 2 3 4 Residual functional capacity is what a claimant can still do 5 despite existing exertional and nonexertional limitations. Cooper v. 6 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989) (citing 20 C.F.R. § 7 404.1545(a)). 8 assessment of an individual's ability to do sustained work-related 9 physical and mental activities in a work setting on a regular and 10 continuing basis. A regular and continuing basis means 8 hours a day, 11 for 5 days a week, or an equivalent work schedule. 12 8p (July 2, 1996). 13 must consider not only medical evidence, but also subjective symptoms 14 such as fatigue and pain. 15 lay witness testimony only by giving legitimate, specific reasons 16 germane to the witness whose testimony is rejected. 17 Comm r of Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999). 18 review, improperly rejected lay-witness testimony must be given full 19 credit as true. 20 968, 976 (9th Cir. 2000). According to Social Security Ruling 96-8p, RFC is an Soc. Sec. Rul. 96- To determine residual functional capacity, the ALJ Smolen, 80 F.3d at 1291. An ALJ may reject See Regennitter v. See Schneider v. Comm r of Soc. Sec. Admin., 223 F.3d 21 22 On Sedentary work is defined as: 23 24 lifting no more than 10 pounds at a time and occasionally 25 lifting or carrying articles like docket files, ledgers, and 26 small tools. 27 which involves sitting, a certain amount of walking and 28 standing is often necessary in carrying out job duties. Jobs Although a sedentary job is defined as one 21 1 are sedentary if walking and standing are required 2 occasionally and other sedentary criteria are met. 3 4 20 C.F.R. § 404.1567(a). 5 6 There is substantial evidence to support the ALJ s RFC. The report 7 by the consultative physician, Dr. Sainten, asserted that Plaintiff 8 could occasionally and frequently lift or carry less than ten pounds; 9 stand or walk for two hours in an eight hour day; and sit for six hours 10 in an eight hour day. (AR 282). This opinion is consistent with the 11 ALJ s RFC and alone constitutes substantial evidence supporting it. See 12 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 13 14 Other aspects of the RFC are supported by Plaintiff s own 15 testimony. Plaintiff testified that she would not be able to sit[] all 16 day because I have to get up for circulatory purposes. 17 further testified that in her daily activities she got up to maneuver 18 [her]self around. 19 stand and walk for long periods of time, she could walk, either with a 20 limp or crooked. 21 three-quarters of her waking hours. (AR 47-48). Regarding her need for 22 naps, Plaintiff testified that (a) she took her medication at specific 23 times during the day (AR 48-49); (b) she took her heart medication at 24 noon (AR 47); and (c) she then napped at noon for one hour out of a day 25 with fifteen waking hours (id.; see also AR 38). 26 constitutes substantial evidence to support the ALJ s findings that 27 Plaintiff could sit for six hours out of an eight hour day with breaks 28 to move about and that she would need a break to nap at midday. (Id.). (AR 40). (AR 37). She She asserted that, although she could not She estimated that she sat down for about 22 This testimony 1 Testimony that Plaintiff had good and bad days and spent most of her 2 time on the phone making appointments with doctors (see AR 31, 34, 45) 3 supports the finding that Plaintiff would miss one to two days per month 4 of work, a limitation that the ALJ included in the hypothetical. 5 6 Finally, the record does not support Plaintiff s argument that 7 medication would prevent her from being able to complete simple, 8 repetitive tasks. Rather, Plaintiff testified that her heart medication 9 requires her to take a nap at mid-day, as noted above. As for her pain 10 medication, Plaintiff testified that she takes aspirin and Vicodin for 11 pain and that it helps a little bit. 12 35-36). She further testified that she could probably use [her] hands 13 in a job. (AR 37). This does not support Plaintiff s argument that she 14 would be unable to perform simple, repetitive tasks because of her 15 medication. 16 It is equally clear that the ALJ s RFC was supported by substantial 17 evidence. Sometimes nothing helps. (AR Thus, the ALJ partially credited Plaintiff s testimony. 18 19 20 2. The ALJ s Hypothetical To The Vocational Expert Was Supported By Substantial Evidence 21 22 Plaintiff does not appear to argue that the hypothetical posed at 23 the hearing to vocational expert Berry was flawed independent of its 24 reliance on the ALJ s RFC. 25 hypothetical clearly tracked the limitations set out by the ALJ in the 26 RFC: a non-illiterate individual with an eleventh grade education who 27 can be on her feet for two hours sporadically out of an eight-hour work 28 day, can sit but needs to stretch every thirty to sixty minutes, cannot (See Plaintiff s Memo. at 2-4). 23 The 1 lift any more than ten pounds, needs to lie down at midday, and would 2 miss work up to twice a month. 3 simple, repetitive tasks. 4 Thus, given the Court s finding that substantial evidence supported the 5 RFC, substantial evidence also supports the hypothetical. (Id.). (AR 52). She would be limited to This tracks the ALJ s RFC exactly. 6 7 8 B. The ALJ Provided Clear And Convincing Reasons For Rejecting Plaintiff s Credibility 9 10 The ALJ may reject a plaintiff s testimony if he makes an explicit 11 credibility finding that is supported by a specific, cogent reason for 12 the disbelief. 13 1990). Unless there is affirmative evidence showing that the plaintiff 14 is malingering, the Commissioner s reasons for rejecting the plaintiff s 15 testimony must be clear and convincing. 16 Moreover, the ALJ may not discredit a claimant s testimony solely 17 because the degree of pain alleged by the claimant is not supported by 18 objective medical evidence. Bunnell v. Sullivan, 947 F.2d 341, 346-47 19 (9th Cir. 1991) (en banc). Similarly, an ALJ can reject non-claimant 20 lay witness testimony only by giving specific reasons germane to [the] 21 witness. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. Lester, 81 F.3d at 834). Regennitter, 166 F.3d at 1298. 22 23 The ALJ carefully reviewed Plaintiff s medical records (see AR 16- 24 19) and found that the objective evidence did not support Plaintiff s 25 statements regarding the intensity, persistence, and limiting effects 26 of [her] symptoms to the extent that those symptoms were inconsistent 27 with the RFC. 28 findings, which were themselves supported by the overall evidence of (AR 16). The ALJ specifically cited Dr. Sainten s 24 1 record. (AR 16). He further stressed that Plaintiff s July 8, 2007 2 exam showed minimal swelling, no discoloration or warmth, and only a 3 small amount of clear drainage from around the left lateral malleolus. 4 (Id.). Similarly, Plaintiff s October 3, 2007 examination showed mild 5 soft tissue swelling to the medial and lateral malleolus, but no 6 deformity. (Id.). An X-ray later in October 2007 showed some swelling 7 but no infection, and one in June 2008 showed that the fractures are 8 surgically 9 osteoarthritis. aligned and (AR 17). the presence of moderate post-traumatic Although Plaintiff was treated for other 10 conditions, none had any more than a minimal effect on [Plaintiff s] 11 ability to engage in work-related activities. (Id.). 12 13 Additionally, the ALJ found inconsistencies in Plaintiff s own 14 testimony that undercut her credibility. The ALJ pointed to Plaintiff s 15 2007 mental status exam, which stated that Plaintiff dresses and bathes 16 herself; can run errands and go to the store with help, and can cook and 17 make snacks and participate in household shores, but she insists 18 everything is with help because she is in a wheelchair. 19 However, the ALJ points out that Plaintiff was prescribed crutches on 20 only two occasions, one in connection with postsurgical pain (AR 378) 21 and once after she twisted the ankle that she previously had surgery on. 22 (AR 397). 23 that she continues to require crutches or any other assistive device. 24 (AR 19). 25 able to do light housework and cook. 26 at the hearing that, although she could not walk or stand for long 27 periods of time, on good days she was able to walk crooked and on bad 28 days with a limp. (AR 296). There is no evidence other than Plaintiff s own testimony Moreover, at the hearing, Plaintiff testified that she was (AR 46). She further testified (AR 40; see also AR 37 (testifying that she cannot 25 1 sit for long periods of time, but must get up to maneuver ); AR 47-48 2 (testifying that she sat down for three-quarters of a fifteen hour 3 day)). 4 is always in a wheelchair and therefore needs constant aid. 5 296). None of this is consistent with Plaintiff s assertion that she (See AR 6 7 Moreover, the ALJ gave reasons germane to the witness in rejecting 8 third-party lay witness Eselema s testimony. 9 Eselema completed the form less than two months after [Plaintiff] had 10 left ankle surgery, during the immediate post-surgical period. (AR 19; 11 see also AR 157 (form dated 11/12/06)). 12 within a year, Plaintiff s condition had improved markedly. 13 addition, there was no evidence that Plaintiff needed crutches, other 14 than for the two brief periods when she was prescribed crutches in July 15 2007 and in October 2007. 16 opinion was not useful for assessing the entire relevant period. 17 (Id.). 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ (Id.). The ALJ pointed out that The ALJ pointed out that, (Id.). In He therefore reasoned that Eselema s The ALJ, therefore, properly discounted Eselema s statements. 28 26 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered AFFIRMING the 6 decision of the Commissioner and dismissing this action with prejudice. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 8 Order and the Judgment on counsel for both parties. 9 10 DATED: July 21, 2010. 11 /S/ 12 ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 27
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