Roxane Cardenas v. Micheal J Astrue, No. 5:2010cv00256 - Document 18 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Roxane Cardenas (Cardenas) filed this action on February 25, 2010. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on March 10 and March 17, 2010. (Dkt. Nos. 8, 10.) On November 9, 2010, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. IT IS HEREBY ORDERED that the decision of the Commissioner is remanded for proceedings at step four and, if appropriate, step five of the sequential analysis consistent with this Opinion. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROXANE CARDENAS, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 10-256 AGR MEMORANDUM OPINION AND ORDER 18 Roxane Cardenas ( Cardenas ) filed this action on February 25, 2010. 19 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 20 magistrate judge on March 10 and March 17, 2010. (Dkt. Nos. 8, 10.) On 21 November 9, 2010, the parties filed a Joint Stipulation ( JS ) that addressed the 22 disputed issues. The Court has taken the matter under submission without oral 23 argument. Having reviewed the entire file, the Court remands this matter to the 24 25 Commissioner for proceedings consistent with this Opinion. 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On August 15, 2006, Cardenas filed applications for disability insurance 4 benefits and supplemental security income benefits alleging an onset date of 5 June 17, 2001.1 Administrative Record ( AR ) 156-64. The applications were 6 denied initially and upon reconsideration. AR 77-86. Cardenas requested a 7 hearing before an Administrative Law Judge ( ALJ ). AR 87. On October 24, 8 2008, the ALJ continued the hearing to give Cardenas time to find representation. 9 See AR 53-57. On November 25, 2008, a hearing was conducted at which 10 Cardenas testified, however, the ALJ again continued the hearing to give 11 Cardenas additional time to submit further medical evidence, and so that she 12 could be evaluated by a consultative medical examiner. See AR 36-50. On April 13 13, 2009, the ALJ conducted a supplemental hearing at which Cardenas and a 14 vocational expert ( VE ) testified. AR 21-35. On July 23, 2009, the ALJ issued a 15 decision denying benefits. AR 6-16. On January 7, 2010, the Appeals Council 16 denied the request for review. AR 1-4. This action followed. 17 II. 18 STANDARD OF REVIEW 19 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 20 decision to deny benefits. The decision will be disturbed only if it is not supported 21 by substantial evidence, or if it is based upon the application of improper legal 22 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 23 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 24 25 Substantial evidence means more than a mere scintilla but less than a preponderance it is such relevant evidence that a reasonable mind might 26 27 28 1 Cardenas later amended her alleged onset disability date to February 23, 2006. Her prior applications for disability insurance benefits and supplemental security income benefits were denied on February 22, 2006. AR 53-54, 61-69. 2 1 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 2 determining whether substantial evidence exists to support the Commissioner s 3 decision, the Court examines the administrative record as a whole, considering 4 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 5 evidence is susceptible to more than one rational interpretation, the Court must 6 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 7 III. 8 DISCUSSION 9 A. Disability 10 A person qualifies as disabled, and thereby eligible for such benefits, only 11 if his physical or mental impairment or impairments are of such severity that he is 12 not only unable to do his previous work but cannot, considering his age, 13 education, and work experience, engage in any other kind of substantial gainful 14 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 15 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). 16 B. 17 The ALJ found Cardenas met the insured status requirements through The ALJ s Findings 18 December 31, 2007. AR 11. Cardenas had the following severe impairments: 19 status post motor vehicle accident in June 2001 with residual chronic right neck 20 and shoulder pain; a second minor vehicle accident in December 2003 with neck 21 and shoulder pain; degenerative disc disease of the cervical spine with right 22 upper extremity radiculopathy; and degenerative disc disease of the lumbar 23 spine. Id. Cardenas has the residual functional capacity ( RFC ) to perform light 24 work except she can only sit for two hours then must take a break for six hours 25 in an eight hour period. AR 12. She can stand and/or walk 6 out [of] 8 hours 26 with normal breaks. Postural limitations (i.e, climbing ramps/stairs, balancing, 27 stooping, kneeling, crouching and crawling) can be done on an occasional basis. 28 [She] cannot climb ladders, ropes or scaffolds. She can occasionally reach at or 3 1 above shoulder level with the right upper extremity and no forceful gripping or 2 torquing with the right dominant hand. Id. Cardenas could perform her past 3 relevant work as a cashier and as a child care assistant as generally performed. 4 AR 15. 5 C. Treating Physicians Opinions 6 An opinion of a treating physician is given more weight than the opinion of 7 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To 8 reject an uncontradicted opinion of a treating physician, an ALJ must state clear 9 and convincing reasons that are supported by substantial evidence. Bayliss v. 10 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a treating physician s 11 opinion is contradicted by another doctor, the ALJ may not reject this opinion 12 without providing specific and legitimate reasons supported by substantial 13 evidence in the record. This can be done by setting out a detailed and thorough 14 summary of the facts and conflicting clinical evidence, stating his interpretation 15 thereof, and making findings. Orn, 495 F.3d at 632 (citations and quotation 16 marks omitted). When there is conflicting medical evidence, the Secretary must 17 determine credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 18 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 19 Cardenas contends the ALJ improperly rejected her treating physicians 20 opinions. Cardenas specifically refers to eight Authorization to Release Medical 21 Information forms from her treating physicians, Dr. Thakran and Dr. Basa, at 22 Barstow Community Hospital. JS 3-6. The eight one-page release forms ranging 23 in date from August 25, 2002 to July 16, 2009 generally reflect that Cardenas has 24 a medically verifiable chronic condition, she is receiving treatment, and she is 25 unable to work.2 AR 246, 303, 305-309, 317. The ALJ gave no weight to these 26 27 28 2 Cardenas argues the ALJ does not specifically mention three of the eight Authorization to Release Medical Information forms and, therefore, failed to consider her treating physicians opinions. JS 6. The ALJ is not required to discuss every piece of evidence on record, as long as his decision is supported 4 1 findings for two reasons: (1) the findings were conclusory and not accompanied 2 by any clinical or objective evidence, and (2) the forms were completed for county 3 benefits and not for the purpose of Social Security Disability benefits. AR 14. 4 An ALJ may properly consider the absence of any clinical findings, 5 treatment notes or psychological tests. Orn, 495 F.3d at 631; 20 C.F.R. § 6 404.1527(d)(3). Drs. Thakran and Basa do not provide any treatment notes, 7 clinical findings or test results to support their opinion that Cardenas is disabled 8 and unable to work. [T]he ALJ need not accept the opinion of any physician, 9 including a treating physician, if that opinion is brief, conclusory, and inadequately 10 supported by clinical findings. Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 11 1219, 1228 (9th Cir. 2009) (citation omitted); Batson v. Comm r of Soc. Sec. 12 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Further, the few radiology tests 13 submitted by the Barstow Community Hospital show no significant functional 14 impairments to support Drs. Thakran and Basa s opinions. AR 256, 265, 267, 15 269, 271, 277, 281, 283. However, the ALJ did expressly consider and determine 16 Cardenas RFC based, in part, on the radiological findings. AR 14 ( I find a light 17 residual functional capacity more appropriate than the medium residual functional 18 capacity assessed by the consultative examine, (sic) given the radiological 19 findings. ). 20 The ALJ also discounted the treating physicians opinions because the 21 forms were not completed for social security purposes. AR 14. A treating 22 physician s opinion as to the ultimate determination of disability is not binding on 23 an ALJ. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). The existence of 24 disability is an administrative determination of how an impairment, in relation to 25 26 27 28 by substantial evidence. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Rather, the ALJ need only explain why significant probative evidence has been rejected. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (citation and quotation marks omitted). The forms the ALJ does not specifically discuss essentially reflect the same findings as the forms he properly rejected. Any error was harmless. 5 1 education, age, technological, economic, and social factors, affects ability to 2 engage in gainful activity and is reserved to the Commissioner. Id. 3 4 The ALJ articulated specific and legitimate reasons for discounting the treating physicians forms. The ALJ did not err. 5 D. Development of the Record 6 Cardenas argues the ALJ failed to recontact her treating physicians to 7 obtain further information regarding their findings on the Authorization to Release 8 Medical Information forms discussed above. An ALJ s duty to develop the 9 record further is triggered only when there is ambiguous evidence or when the 10 record is inadequate to allow for proper evaluation of the evidence. Mayes v. 11 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). The ALJ did not find that the 12 record was insufficient or inadequate. As discussed above, the ALJ rejected the 13 treating physicians opinions as unsupported by clinical findings. AR 14. 14 Moreover, the ALJ kept the record open for 30 days to allow Cardenas to submit 15 additional medical evidence, scheduled a supplemental hearing, and ordered a 16 consultative examination for Cardenas. AR 43-48; Tonapetyan v. Halter, 242 17 F.3d 1144, 1150 (9th Cir. 2001) (ALJ satisfies duty to develop record by 18 continuing the hearing or keeping the record open to allow supplementation); 19 Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001) ( One of the means 20 available to an ALJ to supplement an inadequate medical record is to order a 21 consultative examination ). The ALJ did not err. 22 E. 23 Cardenas contends the ALJ erred in finding that her RFC permits her to Step Four of the Sequential Analysis 24 perform her past relevant work as a cashier and child care assistant as generally 25 performed. JS 16-21. 26 At step four of the sequential analysis, the claimant has the burden to 27 prove that [s]he cannot perform his prior relevant work either as actually 28 performed or as generally performed in the national economy. Carmickle v. 6 1 Comm'r of Soc. Sec. Admin, 533 F.3d 1155, 1166 (9th Cir. 2008) (citation 2 omitted). Although the burden of proof lies with the claimant at step four, the 3 ALJ still has a duty to make the requisite factual findings to support his 4 conclusion. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). This is done 5 by looking at the residual functional capacity and the physical and mental 6 demands of the claimant s past relevant work. Id. at 844-45; see also 20 C.F.R. 7 §§ 404.1520(e) & 416.920(e). When an ALJ relies on the DOT for a job 8 description of a claimant s past relevant work, the ALJ must definitively explain 9 any deviation between the Dictionary of Occupational Titles ( DOT ) and the 10 claimant s noted limitations. Pinto, 249 F.3d at 847. 11 The ALJ limited Cardenas to, among other things, occasional stooping 12 and occasional reaching above shoulder level with the right upper extremity.3 13 AR 12 (emphasis added). The VE testified that Cardenas could perform her past 14 relevant work as a cashier which, according to the DOT, requires reaching on a 15 constant basis (from two-thirds or more of the time). AR 34 (emphasis added); 16 DOT 211.462-014. The VE also testified that she could perform her past relevant 17 work as a child care assistant which, according to the DOT, requires reaching 18 and stooping on a frequent basis (from one-third to two-thirds of the time). DOT 19 359.677-018 (emphasis added). There appears to be a conflict between the 20 ALJ s RFC determination and the DOT requirements for these two jobs. 21 The DOT raises a rebuttable presumption as to job classification. Johnson 22 v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). When there is a conflict between 23 the VE s testimony and the DOT, the ALJ is required to ask the VE whether 24 his/her testimony conflicts with the DOT and, if so, whether there is a reasonable 25 26 27 28 3 Cardenas also argues the ALJ s RFC precluding forceful gripping and torquing with the right hand conflicts with the job requirements of cashier and child care assistant. JS-16. Both jobs require exerting up to 20 pounds of force occasionally,10 pounds of force frequently and/or a negligible amount of force constantly to move objects. DOT 211.462-014 and 359.677-018. There is no indication that either job requires forceful gripping and torquing. Id. 7 1 explanation for any conflict. Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2 2007); Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1234 (9th Cir. 2009); 3 SSR 00-4p. SSR 00-4p requires the ALJ to determine whether the [VE s] 4 explanation for the conflict is reasonable and whether a basis exists for relying on 5 the expert rather than the [DOT]. Massachi, 486 F.3d at 1153. In evaluating the 6 VE s explanation for the conflict, an ALJ may rely on expert testimony which 7 contradicts the DOT, but only insofar as the record contains persuasive evidence 8 to support the deviation. Johnson, 60 F.3d at 1435. The ALJ s explanation is 9 satisfactory if the ALJ s factual findings support a deviation from the DOT and 10 persuasive testimony of available job categories matches the specific 11 requirements of a designated occupation with the specific abilities and limitations 12 of the claimant. Id. at 1435. Remand may not be necessary if the procedural 13 error is harmless, i.e., when there is no conflict or if the VE had provided sufficient 14 support for her conclusion so as to justify any potential conflicts. Massachi, 486 15 F.3d at 1154 n.19. 16 The ALJ found, and the VE represented, that the [VE s] testimony is 17 consistent with the information contained in the [DOT]. AR 15. The VE did not 18 explain the basis for her conclusion so as to justify any apparent inconsistency 19 between her testimony, the RFC determination and the DOT. AR 34. 20 Accordingly, remand is warranted at step four of the sequential analysis. 21 Massachi, 486 F.3d at 1154. 22 F. Credibility 23 To determine whether a claimant s testimony regarding subjective pain or 24 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 25 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 26 First, the ALJ must determine whether the claimant has presented 27 objective medical evidence of an underlying impairment which could reasonably 28 be expected to produce the pain or other symptoms alleged. Id. (quoting 8 1 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). The ALJ found 2 Cardenas medically determinable impairments could reasonably be expected to 3 cause her symptoms. AR 13. 4 Second, if the claimant meets this first test, and there is no evidence of 5 malingering, the ALJ can reject the claimant s testimony about the severity of her 6 symptoms only by offering specific, clear and convincing reasons for doing so. 7 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 8 determination, the ALJ must specifically identify what testimony is credible and 9 what testimony undermines the claimant s complaints. Greger v. Barnhart, 464 10 F.3d 968, 972 (9th Cir. 2006) (citation omitted). [T]o discredit a claimant s 11 testimony when a medical impairment has been established, the ALJ must 12 provide specific, cogent reasons for the disbelief. Orn, 495 F.3d at 635 (citations 13 and quotation marks omitted). The ALJ must cite the reasons why the claimant s 14 testimony is unpersuasive. Id. (citation and quotation marks omitted). The ALJ 15 may consider (a) inconsistencies or discrepancies in a claimant s statements; (b) 16 inconsistencies between a claimant s statements and activities; (c) exaggerated 17 complaints; and (d) an unexplained failure to seek treatment. Thomas v. 18 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 19 The ALJ made no finding of malingering. See AR 12-13. The ALJ found 20 that Cardenas statements concerning the intensity, persistence and limiting 21 effects of [her] symptoms are not credible. AR 13. The ALJ relied upon 22 Cardenas failure to seek treatment commensurate with her alleged pain (or 23 conservative treatment). Id. 24 [E]vidence of conservative treatment is sufficient to discount a claimant s 25 testimony regarding severity of an impairment. Parra v. Astrue, 481 F.3d 742, 26 751 (9th Cir. 2007) (citation omitted). An unexplained or inadequately explained 27 failure to seek treatment is also a valid consideration in determining credibility. 28 See Orn, 495 F.3d at 636. The ALJ noted Cardenas limited activities of daily 9 1 living and the degree of pain alleged are difficult to attribute to her medical 2 condition in light of the relatively sparse medical evidence. AR 13. Specifically, 3 the ALJ noted that since the alleged onset date, Cardenas had only one doctor s 4 visit on August 14, 2006. AR 13, 293. Prior to that date, it appears there was a 5 16-month period during which Cardenas sought no treatment. See AR 293-95. 6 The ALJ also noted Cardenas had not participated in any type of treatment 7 consistent with a chronic pain syndrome such as physical therapy, treatment at a 8 pain clinic, or therapeutic treatment. AR 13. Indeed, Cardenas reported that 9 since 2001 she has had treatment for her neck and lower back pain with physical 10 therapy and over the counter medications, but not with epidural injections or 11 surgical intervention. AR 312; Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th 12 Cir. 2008) (describing physical therapy and anti-inflammatory medication as 13 conservative treatment). 14 The ALJ s credibility finding is supported by substantial evidence. If the 15 ALJ s credibility finding is supported by substantial evidence in the record, we 16 may not engage in second-guessing. Thomas, 278 F.3d at 959 (citing Morgan v. 17 comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). 18 IV. 19 ORDER 20 IT IS HEREBY ORDERED that the decision of the Commissioner is 21 remanded for proceedings at step four and, if appropriate, step five of the 22 sequential analysis consistent with this Opinion. 23 24 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 25 26 DATED: August 3, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 27 28 10

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