Martha O. Thomas v. Michael J. Astrue, No. 5:2010cv01550 - Document 18 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is AFFIRMED and this case dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (san)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 MARTHA O. THOMAS, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-01550-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 17 PROCEEDINGS 18 19 On October 12, 2010, Martha O. Thomas ( Plaintiff or Claimant or Thomas ) filed a 20 Complaint seeking review of the decision by the Commissioner of the Social Security 21 Administration ( Commissioner ) denying her March 28, 2006, applications for Social 22 Security Disability Insurance benefits and Supplemental Security Income. On April 12, 2011, 23 the Commissioner filed an Answer to the Complaint. On August 22, 2011, the parties filed a 24 Joint Stipulation ( JS ) setting forth their positions and the issues in dispute. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the 26 undersigned Magistrate Judge. After reviewing the pleadings, transcripts, and administrative 27 record ( AR ), the Court concludes that the Commissioner s decision should be affirmed and 28 this case dismissed with prejudice. BACKGROUND 1 2 Plaintiff is a 59 year old female alleging disability beginning September 29, 1999, due 3 to chronic muscle pain in her arms, legs, and shoulders. (AR 16, 97.) Plaintiff has not 4 engaged in substantial gainful activity since that date. (AR 18.) 5 Plaintiff s claims were denied initially on July 7, 2006, and on reconsideration on 6 March 2, 2007. (AR 16.) Plaintiff filed a timely request for hearing, which was held on May 7 6, 2008, in San Bernardino, California, before Administrative Law Judge ( ALJ ) Jay E. 8 Levine. (AR 16-26.) Vocational expert ( VE ) Troy L. Cott also testified. (AR 16.) Plaintiff 9 was represented by counsel. (AR 16.) 10 The ALJ issued an unfavorable decision on June 23, 2008. (AR 16-26.) The Appeals 11 Council denied review on May 14, 2010. (AR 8-10. ) DISPUTED ISSUES 12 13 As reflected in the Joint Stipulation, the issues Plaintiff raises as grounds for reversal 14 and remand are as follows: 15 1. of record. 16 17 18 19 20 Whether the ALJ has properly considered all of the relevant medical evidence 2. Whether the ALJ has properly considered Plaintiff s subjective complaints and properly assessed Plaintiff s credibility. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 21 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 22 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 23 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 24 based on the proper legal standards). 25 Substantial evidence means more than a mere scintilla, but less than a 26 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson 27 v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 28 2 1 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. 2 at 401 (internal quotation marks and citation omitted). 3 This Court must review the record as a whole and consider adverse as well as 4 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 5 Where evidence is susceptible to more than one rational interpretation, the ALJ s decision 6 must be upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 7 1999). However, a reviewing court must consider the entire record as a whole and may not 8 affirm simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 9 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 10 495 F.3d 625, 630 (9th Cir. 2007). 11 12 THE SEQUENTIAL EVALUATION The Social Security Act defines disability as the inability to engage in any substantial 13 gainful activity by reason of any medically determinable physical or mental impairment which 14 can be expected to result in death or . . . can be expected to last for a continuous period of 15 not less than 12 months. 42 U.S.C. §§ 423(d) (1)(A), 1382c(a)(3)(A). The Commissioner 16 has established a five-step sequential process to determine whether a claimant is disabled. 17 20 C.F.R. §§ 404.1520, 416.920. 18 The first step is to determine whether the claimant is presently engaging in substantial 19 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is 20 engaging in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 21 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant has a 22 severe impairment or combination of impairments. Parra, 481 F.3d at 746. An impairment is 23 not severe if it does not significantly limit the claimant s ability to work. Smolen, 80 F.3d at 24 1290. Third, the ALJ must determine whether the impairment is listed, or equivalent to an 25 impairment listed, in Appendix I of the regulations. Id. If the impediment meets or equals 26 one of the listed impairments, the claimant is presumptively disabled. Bowen v. Yuckert, 482 27 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the claimant 28 3 1 from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 2 Before making the step four determination, the ALJ first must determine the claimant s 3 residual functional capacity ( RFC ).1 20 C.F.R. § 416.920(e). The RFC must account for all 4 of the claimant s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 5 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. If the claimant cannot perform his or 6 her past relevant work or has no past relevant work, the ALJ proceeds to the fifth step and 7 must determine whether the impairment prevents the claimant from performing any other 8 substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 9 The claimant bears the burden of proving steps one through four, consistent with the 10 general rule that at all times the burden is on the claimant to establish his or her entitlement 11 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 12 claimant, the burden shifts to the Commissioner to show that the claimant may perform other 13 gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a 14 finding that a claimant is not disabled at step five, the Commissioner must provide evidence 15 demonstrating that other work exists in significant numbers in the national economy that the 16 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. § 17 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 18 entitled to benefits. Id. THE ALJ S DECISION 19 20 In this case, the ALJ determined at step one of the sequential evaluation that Plaintiff 21 has not engaged in substantial gainful activity since September 29, 1999, the alleged onset 22 date. (AR 18.) 23 24 25 26 27 1 Residual functional capacity ( RFC ) is what one can still do despite [his or her] limitations and represents an assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 28 4 At step two, the ALJ found that Ms. Thomas has the following medically determinable 1 2 severe impairments: fibromyalgia, status post right shoulder surgery, status post cervical 3 spine surgery, and obesity. (AR 18.) At step three, the ALJ determined that Plaintiff does not have an impairment or 4 5 combination of impairments that meets or medically equals one of the listed impairments. 6 (AR 19.) The ALJ found that Plaintiff has the RFC to perform light work except that: 7 8 . . . she is limited to occasional lifting with the non-dominant hand with no 9 lifting with the dominant hand; and she is limited to standing and/or 10 walking for 2 hours in an 8-hour workday. The claimant is limited to 11 occasional climbing, balancing, stooping, kneeling, crouching and 12 crawling, and she is precluded from power gripping or working on 13 unprotected heights. 14 (AR 19.) In determining this RFC, the ALJ made an adverse credibility finding. (AR 20, 24.) At step four, the ALJ found that Claimant is capable of performing her past relevant 15 16 work as a customer service representative. (AR 24.) Accordingly, the ALJ concluded that Ms. Thomas is not disabled within the meaning of 17 18 the Social Security Act. (AR 26.) 19 DISCUSSION 20 The ALJ decision must be upheld. The ALJ s adverse credibility determination is 21 supported by substantial evidence. The ALJ s RFC is supported by substantial evidence. 22 The ALJ s non-disability determination is supported by substantial evidence and free of legal 23 error. 24 I. THE ALJ S ADVERSE CREDIBILITY DETERMINATION IS SUPPORTED BY SUBSTANTIAL EVIDENCE 25 Plaintiff alleges chronic muscle pain in the arms, legs, and shoulders and limited 26 ability to use her arms and legs. (AR 20, 97.) She claims to be unable to perform any job 27 due to chronic shoulder, arm, and leg pain. (AR 20.) She claims to be unable to raise or 28 5 1 move her right arm forward because of burning pain and to be unable to raise her arms to 2 wash her hair. (AR 20.) She alleges numbness in the hands and constant pain. (AR 20.) 3 The ALJ, however, discounted Plaintiff s claims of disabling pain for three reasons: (1) 4 the objective medical evidence and medical opinions of the consulting examiner and State 5 agency review physician do not support Plaintiff s subjective pain statements; (2) Plaintiff has 6 been receiving only conservative medical treatment; and (3) Plaintiff s daily activities are 7 inconsistent with her claims of disabling pain. Plaintiff challenges the ALJ s adverse 8 credibility determination, but the ALJ s determination is supported by substantial evidence. 9 10 A. Relevant Law The test for deciding whether to accept a claimant s subjective symptom testimony 11 turns on whether the claimant produces medical evidence of an impairment that reasonably 12 could be expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 13 F.2d 341, 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); 14 Smolen, 80 F.3d at 1281-82 & n.2. The Commissioner may not discredit a claimant s 15 testimony on the severity of symptoms merely because it is unsupported by objective 16 medical evidence. Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds 17 the claimant s symptom testimony not credible, the ALJ must specifically make findings 18 which support this conclusion. Bunnell, 947 F.2d at 345. These findings must be 19 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit 20 [the] claimant s testimony. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); see also 21 Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345-46. 22 Unless there is evidence of malingering, the ALJ can reject the claimant s testimony about 23 the severity of her symptoms only by offering specific, clear and convincing reasons for 24 doing so. Smolen, 80 F.3d at 1283-84; see also Reddick, 157 F.3d at 722. The ALJ must 25 identify what testimony is not credible and what evidence discredits the testimony. Reddick, 26 157 F.3d at 722; Smolen, 80 F.3d at 1284. 27 28 6 1 B. Analysis 2 In determining Plaintiff s RFC, the ALJ concluded that Plaintiff s medically 3 determinable severe impairments of fibromyalgia, status post right shoulder surgery, status 4 post cervical spine surgery, and obesity reasonably could be expected to cause her alleged 5 symptoms. (AR 20, 24.) The ALJ, however, also concluded that Claimant s statements 6 regarding the intensity, persistence and limiting effects of these statements were not 7 credible to the extent they were inconsistent with the ALJ s assessed RFC. (AR 20.) 8 Because the ALJ did not make any finding of malingering, he was required to provide clear 9 and convincing reasons supported by substantial evidence for discounting Plaintiff s 10 credibility. Smolen, 80 F.3d at 1283-84. The ALJ did so. 11 First, the ALJ determined that there was no objective medical evidence to support 12 Plaintiff s claims of disabling pain. An ALJ is entitled to consider whether there is a lack of 13 medical evidence to corroborate a claimant s alleged pain symptoms so long as it is not the 14 only reason for discounting a claimant s credibility. Burch v. Barnhart, 400 F.3d 676, 680-81 15 (9th Cir. 2005). Here, objective examinations revealed normal range of motion in the neck 16 (AR 21) and normal sensation and strength in her shoulder and upper extremities. (AR 21, 17 23.) X-rays of her right shoulder in 2007 were unremarkable. (AR 23.) Phalen s test and 18 Tinel s sign were negative. (AR 21.) A January 2008 electromyelogram of the right upper 19 limb was normal with no weakness. (AR 21-22.) A March 2008 neurosurgical evaluation 20 found some tenderness in the right shoulder, but normal range of motion and full range of 21 motion in the neck. (AR 22.) Both the consulting examiner Dr. Yu and the State agency 22 reviewing physician, although acknowledging Plaintiff s impairments, found Plaintiff capable 23 of lifting 20 pounds occasionally and 10 pounds frequently, walking without an assistance 24 device, and sitting for six hours in an eight hour day. (AR 23-24.) The ALJ s finding that the 25 medical evidence does not support Plaintiff s allegations of disabling pain is supported by 26 substantial evidence. 27 28 7 1 Second, the ALJ found that Plaintiff was receiving only conservative treatment for her 2 impairments. (AR 20-21.) Evidence of conservative treatment is a proper basis for 3 discounting a claimant s testimony regarding the severity of an impairment. Parra, 481 F.3d 4 at 751. Here, the ALJ, after noting past shoulder, carpal tunnel, and spine surgeries over a 5 decade ago, found that more recent medical records show treatment has been routine and 6 conservative consisting essentially of medical refills. (AR 20-21.) The ALJ also found that 7 treatment for Plaintiff s fibromyalgia and muscle aches and pains was routine and 8 conservative, consisting of medication refills. (AR 20.) In February 2006, Claimant s treating 9 physician Dr. Thakker continued her on Motrin and Elavil and recommended walking 30 10 minutes a day and quad strengthening exercises. (AR 242.) In 2008, Dr. Goldenberg 11 recommended that Plaintiff [c]ontinue conservative management. (AR 295.) The ALJ s 12 finding of routine and conservative treatment is supported by substantial evidence. 13 Third, the ALJ found that Plaintiff s daily activities are inconsistent with greater 14 limitations than those assessed in the RFC. An ALJ properly may discount a claimant s 15 credibility if his daily activities are inconsistent with his or her alleged disabling symptoms. 16 Orn, 495 F.3d at 639; Burch, 400 F.3d at 680-81. Here, the ALJ noted that, despite her 17 claimed shoulder pain, Plaintiff: 18 . . . will help out an elderly lady that she takes shopping and takes to 19 lunch. She spends two hours a day with her. The claimant testified that 20 she cooks, cleans the house, and goes to the grocery store, and she goes 21 to Bible study once a week for about one hour and a half. She goes to 22 church every Sunday and she sees her brothers and sisters sometimes. 23 (AR 20.) The ALJ also found that Plaintiff s own statements to physicians and disability 24 forms suggest that she is actually quite active. (AR 24.) The Claimant does all the 25 household chores, shops, and drives. (AR 24.) The ALJ concluded that Plaintiff is capable 26 of performing work within the parameters of the RFC. (AR 24.) The ALJ properly relied on 27 Plaintiff s daily activities in discounting her credibility. 28 8 Plaintiff disagrees with the ALJ s interpretation of the evidence, but where the 1 2 evidence is susceptible to more than one interpretation, one of which supports the ALJ s 3 decision, the ALJ s conclusion must be upheld. Thomas, 278 F.3d at 954. The ALJ s 4 adverse credibility determination is based on clear and convincing reasons supported by 5 substantial evidence. 6 II. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE ALJ S RFC ASSESSMENT IS SUPPORTED BY SUBSTANTIAL EVIDENCE Plaintiff s next argument is that the ALJ s RFC fails to consider all the relevant medical evidence. Plaintiff believes the medical evidence warrants a more restrictive RFC than assessed by the ALJ. The Court disagrees. The ALJ s RFC precludes Plaintiff from lifting with her dominant right hand as well as power gripping. (AR 19.) Plaintiff contends that Plaintiff should have been assessed significant additional limitations in her right upper extremity which would preclude all work. Specifically, Plaintiff asserts that she also would have difficulty reaching in any direction more than on an occasional basis and difficulty using her right upper extremity for gripping, grasping, and fine fingering on more than an occasional basis. In support of these contentions, Plaintiff cites medical evidence of multiple surgeries and degenerative joint disease as to her right shoulder. (AR 133-143.) This medical evidence, however, dates to 1997. As already observed, more recent medical treatment of her right upper extremity has been conservative and the consulting and State agency physicians did not find Plaintiff disabled. Plaintiff cites medical evidence of degenerative joint disease in her cervical and lumbar spine, but these conditions do not relate specifically to her claim about reaching, gripping, and grasping, an MRI of the spine did not show any significant stenosis or root compression (AR 22), and the consulting and State reviewing physicians did not find Plaintiff to be disabled in any event. Plaintiff cites Dr. Goldenberg s assessment that Plaintiff s right upper extremity impairments were most likely the result of some residual or recurrent shoulder disease (AR 295), but Dr. Goldenberg also noted that Plaintiff exhibited normal range of motion in the right shoulder and recommended only 9 1 continued conservative treatment. (AR 294-95.) Plaintiff cites evidence of an EMG of her 2 right wrist and elbow, which indicates nerve involvement in the right upper extremity (AR 3 330-31), but the ALJ gave credit to this objective evidence in imposing greater limitations 4 than supported by the consulting and reviewing physicians. (AR 24.) The ALJ concluded 5 that additional limitations were not indicated. (AR 24.) Plaintiff is simply interpreting the 6 evidence differently, but the ALJ s opinion is reasonable and must be upheld. Thomas, 278 7 F.3d at 954. Plaintiff also notes she has consistently maintained that she has substantial 8 limitations in her ability to use her upper extremities, but the ALJ properly discounted 9 Plaintiff s credibility. (AR 20, 24.) 10 Plaintiff attempts to create a conflict between the ALJ s RFC and the opinion of 11 consulting examiner Dr. Yu. Plaintiff claims that Dr. Yu found that Plaintiff would be limited to 12 only frequent reaching with her right upper extremity below the horizon, a limitation not 13 included in the RFC. Dr. Yu, however, never mentioned reaching. He stated her use of 14 her right upper extremity would be limited. (AR 274.) The ALJ translated the term use into 15 a restriction on lifting, not reaching, and precluded Plaintiff from lifting completely with the 16 right extremity. The ALJ actually found Plaintiff to be more limited than Dr. Yu s examination 17 would support. (AR 24.) 18 State reviewer Dr. Lizarraras offered a manipulative limitation of limited overhead 19 reaching with other reaching frequent (AR 277), but nonetheless found Plaintiff not disabled. 20 The ALJ credited this finding (AR 23-24) and, by precluding all lifting with the right upper 21 extremity, appears to believe he also was precluding overhead reaching. ( AR 24.) The ALJ 22 states that he gave less weight to Dr. Lizarraras opinion because it is not limited enough. 23 (AR 24.) 24 The ALJ is responsible for determining credibility, resolving conflicts in medical 25 testimony and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 26 1995). Here, the ALJ presented a comprehensive summary and analysis of the medical 27 evidence in determining Plaintiff s RFC. No physician found Plaintiff disabled. The ALJ, 28 giving generous consideration of the overall medical evidence and subjective findings, 10 1 found the Plaintiff to be more limited than found by Dr. Yu and Dr. Lizarraras. (AR 24.) The 2 ALJ determined that Claimant has a severe impairment in the right upper extremity with 3 symptoms of pain and numbness, as well as additional objective evidence of ulnar 4 neuropathy, and musculoskeletal impairments of the neck, which can result in additional 5 functional limitations. Yet he also found, based on the medical evidence and Plaintiff s 6 discounted credibility, that additional functional limitations were not warranted. (AR 24.) 7 Thus, the ALJ thoroughly considered all the medical and non-medical evidence, 8 including the evidence for additional limitations cited by Plaintiff. Once again, Plaintiff is 9 simply interpreting the evidence differently than the ALJ, but the ALJ s interpretation is 10 reasonable and must be upheld. Thomas, 278 F.3d at 954. The ALJ s RFC is supported by 11 substantial evidence and free of legal error. ORDER 12 13 IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is 14 AFFIRMED and this case dismissed with prejudice. 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 DATED: September 30, 2011 18 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 11

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.