Paula Santos v. Michael J. Astrue, No. 5:2010cv01965 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. Dermott 1 . IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and this case be dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (gr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 PAULA SANTOS, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-01965-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 17 18 PROCEEDINGS 19 On December 17, 2010, Paula Santos ( Plaintiff or Claimant ) filed a complaint 20 seeking review of the decision of the Commissioner of Social Security ( Commissioner ) 21 denying Plaintiff s applications for Social Security Disability Insurance benefits and 22 Supplemental Security Income benefits. The Commissioner filed an Answer on June 16, 23 2011. On September 8, 2011, the parties filed a Joint Stipulation ( JS ). The matter is now 24 ready for decision. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this 26 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record 27 ( AR ), the Court concludes that the Commissioner s decision should be affirmed and this 28 action dismissed with prejudice. BACKGROUND 1 2 Plaintiff is a 48 year old female who filed an application for Social Security Disability 3 Insurance benefits and Supplemental Social Security Income benefits on May 23, 2008, 4 alleging disability beginning February 10, 2008. (AR 8.) Plaintiff has not engaged in 5 substantial gainful activity since that date. (AR 10.) 6 Plaintiff s claims were denied initially on September 12, 2008, and on reconsideration 7 on March 13, 2009. (AR 8.) Plaintiff filed a timely request for hearing, which was held on 8 March 30, 2010, in San Bernardino, California, before Administrative Law Judge ( ALJ ) 9 Sharilyn Hopson. (AR 18-54.) Plaintiff appeared and testified at the hearing. (AR 8.) 10 Medical expert Dr. Joseph Malancharuvil and vocational expert ( VE ) Corinne J. Porter also 11 appeared and testified at the hearing. (AR 8.) Claimant was represented by counsel. (AR 12 8.) 13 The ALJ issued an unfavorable decision on May 6, 2010. (AR 8-17.) The Appeals 14 Council denied review on October 18, 2010. (AR 1-3.) DISPUTED ISSUES 15 16 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 17 grounds for reversal and remand: 18 1. of record including the testimony of the medical expert. 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 21 properly assessed Plaintiff s credibility as well as those statements made by 22 Plaintiff s boyfriend. 23 24 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 25 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 26 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 27 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 28 based on the proper legal standards). 2 1 Substantial evidence means more than a mere scintilla . . . but less than a 2 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson 3 v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. 5 at 401 (internal quotations and citation omitted). 6 This Court must review the record as a whole and consider adverse as well as 7 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 8 Where evidence is susceptible to more than one rational interpretation, the ALJ s decision 9 must be upheld. Morgan v. Comm r, 169 F.3d 595, 599 (9th Cir. 1999). However, a 10 reviewing court must consider the entire record as a whole and may not affirm simply by 11 isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 (quoting 12 Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 13 625, 630 (9th Cir. 2007). 14 15 SEQUENTIAL EVALUATION The Social Security Act defines disability as the inability to engage in any substantial 16 gainful activity by reason of any medically determinable physical or mental impairment which 17 can be expected to result in death or . . . can be expected to last for a continuous period of 18 not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner 19 has established a five-step sequential process to determine whether a claimant is disabled. 20 20 C.F.R. §§ 404.1520, 416.920. 21 The first step is to determine whether the claimant is presently engaging in substantial 22 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is 23 engaging in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 24 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant has a 25 severe impairment or combination of impairments. Parra, 481 F.3d at 746. An impairment is 26 not severe if it does not significantly limit the claimant s ability to work. Smolen v. Chater, 80 27 F.3d 1273, 1290 (9th Cir. 1996). Third, the ALJ must determine whether the impairment is 28 listed, or equivalent to an impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I of the 3 1 regulations. Parra, 481 F.3d at 746. If the impediment meets or equals one of the listed 2 impairments, the claimant is presumptively disabled. Bowen v. Yuckert, 482 U.S. at 141. 3 Fourth, the ALJ must determine whether the impairment prevents the claimant from doing 4 past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before 5 making the step four determination, the ALJ first must determine the claimant s residual 6 functional capacity ( RFC ).1 20 C.F.R. § 416.920(e). The RFC must consider all of the 7 claimant s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 8 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. If the claimant cannot perform his or 9 her past relevant work or has no past relevant work, the ALJ proceeds to the fifth step and 10 must determine whether the impairment prevents the claimant from performing any other 11 substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 12 The claimant bears the burden of proving steps one through four, consistent with the 13 general rule that at all times the burden is on the claimant to establish his or her entitlement 14 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 15 claimant, the burden shifts to the Commissioner to show that the claimant may perform 16 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To 17 support a finding that a claimant is not disabled at step five, the Commissioner must provide 18 evidence demonstrating that other work exists in significant numbers in the national economy 19 that the claimant can do, given his or her RFC, age, education, and work experience. 20 20 C.F.R. § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is 21 disabled and entitled to benefits. Id. THE ALJ DECISION 22 23 In this case, the ALJ determined at step one of the sequential process that Plaintiff 24 has not engaged in substantial gainful activity since February 10, 2008, the alleged onset 25 date. (AR 10.) 26 27 28 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). 4 1 At step two, the ALJ determined that Plaintiff has the following combination of 2 medically determinable severe impairments: fibromyalgia, carpal tunnel syndrome, 3 degenerative disc disease of the neck and back, chronic obstructive pulmonary disease, 4 asthma, affective mood disorder not otherwise specified with bipolar features, anxiety 5 disorder not otherwise specified, and somatoform disorder. (AR 10.) 6 At step three, the ALJ determined that Plaintiff does not have an impairment or 7 combination of impairments that meets or medically equals one of the listed impairments. 8 (AR 11.) 9 The ALJ next found that Plaintiff has the RFC to perform less than a full range of light 10 work, including these limitations: 11 The claimant is able to lift/carry 20 pounds occasionally, 10 pounds 12 frequently; stand and walk for 6 hours in an 8 hour workday; use a cane 13 as needed; no restrictions on sitting; fine and gross manipulation on 14 frequent basis; can climb stairs but cannot climb ropes, ladders or 15 scaffolds; must avoid concentrated exposure to dust, chemicals or fumes, 16 extreme cold or heat, wetness, and humidity; no working around 17 hazardous machinery or heights; is limited to performing moderately 18 complex tasks up to 5 step instructions in a habituated work setting; and 19 cannot perform safety operations. 20 (AR 12.) In determining this RFC, the ALJ made an adverse credibility determination to the 21 extent Plaintiff s symptoms and statements, and the statements of her boyfriend, are 22 inconsistent with the above RFC. (AR 13-14.) 23 At step four, the ALJ determined that Plaintiff is capable of performing her past 24 relevant work as a telemarketer. (AR 16.) 25 Hence, the ALJ concluded that Claimant is not disabled within the meaning of the 26 Social Security Act. (AR 17.) 27 28 5 1 2 DISCUSSION The ALJ did not err in the consideration of Dr. Malancharuvil s testimony; the gaps in 3 the transcript of his testimony were not material to the outcome of the case. The ALJ did not 4 err in discounting Plaintiff s credibility and that of her boyfriend to the extent inconsistent with 5 the RFC. The ALJ decision must be affirmed. 6 I. THE ALJ PROPERLY CONSIDERED THE MEDICAL EVIDENCE 7 Plaintiff s first argument is that the ALJ inadequately and incompletely considered the 8 testimony of medical expert Dr. Malancharuvil, Ph.D., a licensed psychologist. (AR 15.) 9 Specifically, Plaintiff asserts that Dr. Malancharuvil testified by telephone and there were 10 gaps in the transcript regarding his testimony about fluctuations in Plaintiff s mental status. 11 This is significant, Plaintiff says, because the vocational expert testified that Plaintiff would 12 not be capable of any work if she were off task 20% of the time or had to miss work three 13 days a month. (AR 52.) Thus, Plaintiff argues that variations in her functioning should or 14 could result in a favorable disability determination. 15 To be sure, an ALJ may not ignore relevant medical evidence without giving specific, 16 legitimate reasons supported by substantial evidence for doing so. Smolen, 80 F.3d at 1282; 17 Reddick, 157 F.3d at 722-23 (impermissible for ALJ to develop evidentiary basis by not fully 18 accounting for the context of materials or all parts of he testimony and reports ). Here, 19 however, the ALJ s decision was proper. The ALJ specifically found that the Claimant 20 reported an increase in her anxiety and panic attacks when off her usual regimen of 21 medications. (AR 14, 299.) She often missed appointments and lab tests, which led to 22 interruptions in her medications, and without her medications her symptoms worsened. (AR 23 299, 354.) She had good response to medication after a period of non-compliance. (AR 14.) 24 Thus, there is no basis in the medical evidence of record to suggest that Plaintiff s mental 25 symptoms were not controlled by medication. 26 The gaps in the transcript are not of dispositive significance. Dr. Malancharuvil did not 27 regard Plaintiff to be disabled. Dr. Malancharuvil testified Plaintiff did not meet any listings, 28 6 1 had only mild and moderate limitations in functioning, and for her RFC was limited to 2 moderately complex tasks. The ALJ adopted Dr. Malancharuvil s assessment. (AR 28.) 3 Dr. Malancharuvil would not comment on Plaintiff s physical impairments or the pain they 4 cause. (AR 30.) Similarly, consulting psychiatrist Dr. Romualdo Rodriguez indicated minimal 5 limitations in functioning and that Plaintiff was able to carry out detailed and complex 6 instructions, a less restrictive opinion than Dr. Malancharuvil s. (AR 15, 256.) 7 The ALJ also relied heavily on consulting internist Dr. Sean, who found only mild 8 physical limitations that would not preclude light work. (AR 16, 276.) State agency 9 physicians, both medical and psychiatric, found minimal objective evidence of limitations. 10 (AR 258-268, 269-70, 283-88, 289-291, 292-93, 370-72.) 11 The only potentially contrary medical evidence are two conclusory one page notes 12 that the ALJ properly gave little weight. (AR 14.) Dr. Leong, who treated Plaintiff for 13 fibromyalgia, stated that she would be unable to return to work for one month, which in any 14 event would not satisfy the 12 month duration requirement. (AR 14.) Dr. Lee wrote a note 15 diagnosing bipolar and panic disorder and recommended no full-time work for 12 months. 16 (AR 249.) Neither of these conclusory notes are supported by any objective medical 17 evidence. The ALJ properly concluded that these notes do not establish greater limitations 18 than the assessed RFC. (AR 14.) An ALJ may reject a treating physician s opinion if it is 19 brief, conclusory and unsupported by rationale or treatment notes or objective medical 20 evidence. Batson v. Comm r, 359 F.3d 1190, 1195 n.3 (9th Cir. 2004) (treating physician 21 notes did not provide objective medical evidence of alleged limitations); Crane v. Shalala, 76 22 F.3d 251, 253 (9th Cir. 1996) (ALJ properly rejected check box opinions that did not have 23 any explanation or basis). Plaintiff does not even mention these notes or dispute the ALJ s 24 evaluation of them. 25 Thus, there is no medical evidence, properly considered, that establishes disability. 26 The gaps in the transcript regarding Dr. Malancharuvil s testimony are harmless and 27 inconsequential to the outcome. Stout v. Comm r, Soc. Sec. Adm, 454 F.3d 1050, 1055 (9th 28 7 1 Cir. 2006) (any error harmless where inconsequential to the ultimate nondisability 2 determination ). The ALJ s RFC is supported by substantial evidence and free of legal error. 3 II. THE ALJ PROPERLY DISCOUNTED THE CREDIBILITY OF PLAINTIFF AND HER BOYFRIEND 4 The ALJ discounted Plaintiff s credibility because the objective medical evidence was 5 inconsistent with her claimed limitations, Plaintiff received only conservative treatment, 6 Plaintiff s claimed medication side effects are unsupported by medical records, Plaintiff made 7 inconsistent statements, and her daily activities were inconsistent with her claimed inability to 8 work. Plaintiff contests the ALJ s credibility determination but fails to address most of the 9 ALJ s reasons for discounting Plaintiff s credibility. The ALJ s credibility determination is 10 based on clear and convincing reasons supported by substantial evidence. 11 A. Relevant Law 12 The test for deciding whether to accept a claimant s subjective symptom testimony 13 turns on whether the claimant produces medical evidence of an impairment that reasonably 14 could be expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 15 F.2d 341, 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); 16 Smolen, 80 F.3d at 1281-82 & n.2. The Commissioner may not discredit a claimant s 17 testimony on the severity of symptoms merely because it is unsupported by objective 18 medical evidence. Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds 19 the claimant s symptom testimony not credible, the ALJ must specifically make findings 20 which support this conclusion. Bunnell, 947 F.2d at 345. These findings must be 21 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit 22 [the] claimant s testimony. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); see also 23 Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345-46. 24 Unless there is evidence of malingering, the ALJ can reject the claimant s testimony about 25 the severity of her symptoms only by offering specific, clear and convincing reasons for 26 doing so. Smolen, 80 F.3d at 1283-84; see also Reddick, 157 F.3d at 722. The ALJ must 27 28 8 1 identify what testimony is not credible and what evidence discredits the testimony. Reddick, 2 157 F.3d at 722; Smolen, 80 F.3d at 1284. 3 B. Analysis 4 In determining Plaintiff s RFC, the ALJ concluded that Plaintiff s medically 5 determinable impairments could reasonably be expected to cause her alleged symptoms. 6 (AR 14.) The ALJ, however, found that Plaintiff s statements regarding the intensity, 7 persistence and limiting effects of these symptoms were not credible to the extent they are 8 inconsistent with the above residual capacity assessment. (AR 14.) Because the ALJ did 9 not make any finding of malingering, she was required to provide clear and convincing 10 reasons supported by substantial evidence to discount Plaintiff s credibility. Smolen, 80 F.3d 11 at 1283 84. The ALJ did so. 12 One reason given by the ALJ for discounting Plaintiff s subjective symptoms is the 13 lack of objective medical evidence. The ALJ stated, The claimant s mental and physical 14 treatment records do not establish greater limitations than those opined in the residual 15 functional capacity herein. (AR 14.) The ALJ thoroughly discussed the medical evidence 16 (AR 14-16), which supports the ALJ s conclusion. Lack of objective medical evidence cannot 17 be the sole reason for discounting a claimant s subjective symptoms but it nonetheless 18 remains a relevant factor in an ALJ s credibility determination. Bunnell, 947 F.2d at 345. 19 Plaintiff never addresses the inconsistency between the medical evidence and her claimed 20 limitations. 21 Another reason the ALJ cites in support of her adverse credibility determination is 22 Plaintiff s conservative treatment, which is a valid basis for discounting a claimant s 23 credibility. Parra, 481 F.3d at 750-51. Here, the ALJ noted that [t]he claimant s treatment 24 mostly consisted of medications for pain and her mental impairments and limited talk 25 therapy. (AR 14.) Plaintiff did not dispute this statement. 26 As a third reason supporting her credibility determination, the ALJ noted 27 inconsistencies and a lack of support in the record for Plaintiff s allegations of medication 28 9 1 side effects. (AR 13-14, 42.) The ALJ also noted that Plaintiff s claim of medication side 2 effects is inconsistent with her testimony that pain medication was helping. (AR 13.) Indeed, 3 on September 10, 2009, she indicated that her medications were working with no side 4 effects. (AR 391.) She also had a good response to medication after a period of non5 compliance. (AR 14.) On another occasion, Plaintiff claimed her medications were of little 6 help and needed to be increased. (AR 13, 218, 231-34.) Plaintiff did not address the 7 inconsistencies in her statements regarding medication side effects. There was no clinical 8 evidence to support Plaintiff s claims of medication side effects. Miller v. Heckler, 770 F.2d 9 845, 849 (9th Cir. 1985) (claimant failed to show by clinical evidence that prescription 10 narcotics impaired ability to work); Wilkins v. Astrue, 2010 WL 1407289, at *4 (C.D. Cal. April 11 6, 2010); Santana v. Astrue, 2008 WL 4811402, at *7 (C.D. Cal. Oct. 28, 2008). 12 The ALJ advanced other reasons for discounting Plaintiff s credibility, but the reasons 13 discussed above are undisputed and constitute clear and convincing reasons supported by 14 substantial evidence sufficient by themselves to affirm the ALJ s adverse credibility 15 determination. The ALJ also properly discounted the third party function report of Plaintiff s 16 boyfriend. (AR 13.) The ALJ indicated that the boyfriend only knew Claimant for six months 17 and his report of multiple limitations is not supported by medical records. (AR 13-14, 18318 90.) Inconsistency with medical evidence is a germane reason for discounting the testimony 19 of a lay witness. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 20 The ALJ did not err in discounting Plaintiff s subjective symptoms to the extent 21 inconsistent with the assessed RFC. ORDER 22 23 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 24 Commissioner of Social Security and this case be dismissed with prejudice. 25 LET JUDGMENT BE ENTERED ACCORDINGLY. 26 DATED: November 21, 2011 27 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 28 10

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