Mary L Yrigoyen v. Michael J Astrue, No. 5:2011cv01450 - Document 20 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: (See document for details.) For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 MARY YRIGOYEN, 10 Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-1450-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Mary Yrigoyen seeks judicial review of the Social 18 Security Commissioner s denial of her application for Supplemental 19 Security Income ( SSI ) benefits. For the reasons set forth below, 20 the decision of the Commissioner is affirmed and the action is 21 dismissed with prejudice. 22 23 I. Facts and Procedural Background 24 Plaintiff was born on December 26, 1971. (Administrative 25 Record ( AR ) at 65.) She has a tenth grade education and has work 26 experience as a store clerk. (AR at 211, 215.) Plaintiff filed her 27 application for SSI benefits on April 30, 2008, alleging disability 28 beginning November 30, 2005, due 1 to back and arm pain and 1 arthritis. (AR at 65, 210.) Her application was denied initially on 2 June 13, 2008 and upon reconsideration on June 27, 2008. (AR at 67- 3 70, 75-79.) Administrative Law Judge ( ALJ ) Joseph D. Schloss held 4 administrative hearings on September 23, 2009, March 2, 2010 and 5 May 20, 2010. Plaintiff, represented by an attorney, testified as 6 did a vocational expert ( VE ) and a medical expert. (AR at 13-63.) 7 ALJ Schloss issued an unfavorable decision on November 22, 8 2010. (AR at 389-397.) The ALJ found that Plaintiff suffered from 9 the following severe impairments: morbid obesity, arthritis and 10 diabetes. (AR at 391.) However, these severe impairments did not 11 meet the requirements of a listed impairment found in 20 C.F.R. 12 Part 404, Subpart P, Appendix 1. (AR at 392.) 13 The ALJ found that Plaintiff retained the residual functional 14 capacity ( RFC ) to perform light work as defined in 20 C.F.R. 15 416.967(b) as follows: [T]he claimant could stand and/or walk for 16 1 hour in an 8-hour work day, 10 to 15 minutes at a time; she could 17 sit for 8 hours in an 8-hour workday, but changing positions every 18 1 to 3 minutes per hour; the claimant would be allowed to elevate 19 her legs 6 inches above floor level and stand and stretch as 20 needed; the claimant could lift and/or carry 20 pounds occasionally 21 and 10 pounds frequently; the claimant could not climb ladders, 22 ropes, or scaffolds; the claimant could not work at heights or 23 balance; she could not do forceful gripping, grasping, or twisting 24 but she could do fine manipulation, such as keyboarding; the 25 claimant could do frequent gross manipulation, such as opening 26 drawers and carrying files; she could occasionally do flexion and 27 extension at the elbows for both upper extremities. (AR at 392.) 28 The ALJ concluded that although Plaintiff could not perform 2 1 any past relevant work, there were jobs in the national economy 2 which Plaintiff could perform, such as counter clerk, school bus 3 monitor, and election clerk. (AR at 396-397.) Therefore, he found 4 that Plaintiff was not disabled under the Social Security Act. (AR 5 at 397.) 6 The Appeals Council denied review on July 19, 2011 (AR at 1- 7 4), and Plaintiff commenced this action for judicial review. On 8 April 20, 2012, the parties filed a Joint Stipulation ( Joint 9 Stip. ) of disputed facts and issues, including the following 10 claims of error: (1) the ALJ erred in evaluating Plaintiff s 11 credibility and subjective testimony; and (2) the ALJ failed to 12 carry the Administration s Burden at Step 5 of the sequential 13 evaluation process. (Joint Stip. at 3.) Plaintiff asks the Court to 14 reverse and order an award of benefits, or in the alternative, 15 remand for further administrative proceedings. (Joint Stip. at 21.) 16 The Commissioner requests that the ALJ s decision be affirmed. 17 (Id.) 18 19 20 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner s 22 decision must be upheld unless the ALJ s findings are based on 23 legal error or are not supported by substantial evidence in the 24 record as a whole. Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 25 1999); 26 Substantial evidence means more than a scintilla, but less than a 27 preponderance; it is evidence that a reasonable person might accept 28 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 Parra decision v. Astrue, to deny 481 benefits. F.3d 3 742, 746 The Commissioner s (9th Cir. 2007). 1 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 2 466 3 substantial evidence supports a finding, the reviewing court must 4 review the administrative record as a whole, weighing both the 5 evidence that supports and the evidence that detracts from the 6 Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 7 (9th Cir. 1996). If the 8 or reversing the ALJ s conclusion, the reviewing court may not 9 substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 10 F.3d 880, 882 (9th Cir. 2006)). evidence can To determine support either whether affirming 882. 11 12 13 III. Discussion A. 14 15 The ALJ Properly Evaluated Plaintiff s Subjective Symptom Testimony Plaintiff contends that the ALJ failed to provide clear and 16 convincing reasons 17 testimony. (Joint 18 administrative hearing to the following symptoms and functional 19 limitations: she has cysts around the heels of her feet and 20 throbbing pain on the bottom left heel; she has numbness in both 21 hands; she can only walk about five steps before having to sit 22 down; she had surgery in her left hand but she still has numbness 23 in her left elbow and hand; and she uses inhalers and takes pain 24 medication. (AR at 33-34, 47-55.) for Stip. discrediting at 4.) her Plaintiff subjective testified symptom at the 25 To determine whether a claimant s testimony about subjective 26 pain or symptoms is credible, an ALJ must engage in a two-step 27 analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 28 (citing Lingenfelter 504 F.3d at 1035-36). First, the ALJ must 4 1 determine whether the claimant has presented objective medical 2 evidence of an underlying impairment which could reasonably be 3 expected 4 Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces 5 objective 6 adjudicator may not reject a claimant s subjective complaints based 7 solely on a lack of objective medical evidence to fully corroborate 8 the alleged severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 9 345 (9th Cir. 1991) (en banc). To the extent that an individual s 10 claims of functional limitations and restrictions due to alleged 11 pain is reasonably consistent with the objective medical evidence 12 and other evidence in the case, the claimant s allegations will be 13 credited. SSR 96-7p, 1996 WL 374186 at *2 (explaining 20 C.F.R. §§ 14 404.1529(c)(4), 416.929(c)(4)).1 15 to Here, produce medical the the evidence ALJ alleged of an concluded pain or other underlying that symptoms. impairment, Plaintiff s an medically 16 determinable impairments could reasonably be expected to cause the 17 alleged 18 Plaintiff s description of her symptoms to the extent they [were] 19 inconsistent with the ALJ s assessment that Plaintiff retained the 20 RFC to perform light work with certain limitations. (Id.) symptoms. (AR at 393.) However, the ALJ rejected 21 Unless there is affirmative evidence showing that the claimant 22 is malingering, the ALJ must provide specific, clear and convincing 23 reasons for discrediting a claimant s complaints. Robbins, 466 F.3d 24 25 26 27 28 1 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary s interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3. 5 1 at 883. However, where there is affirmative evidence suggesting 2 malingering, this vitiates the clear and convincing standard of 3 review. See Schow v. Astrue, 272 Fed.Appx. 647, 651 (9th Cir. 4 2008) (citing Lingenfelter, 504 F.3d at 1036; Smolen v. Chater, 80 5 F.3d 1273, 1283-84 (9th Cir. 1996)). Here, there was affirmative 6 evidence 7 evaluated by clinical psychologist Dr. Robin Rhodes Campbell, Ph.D. 8 and given various psychological tests. (AR at 316-326.) As noted by 9 the ALJ, Dr. Campbell found that Plaintiff s effort was sporadic in 10 that, [a]t times, she appeared to give tasks a good effort, and at 11 other times she appeared to be deliberately performing poorly, 12 exaggerating, or feigning symptoms. (AR 395, citing AR at 322.) 13 Dr. Campbell also noted that the psychological test results should 14 be interpreted cautiously given the claimant s poor effort. (AR at 15 320.) of malingering. On November 5, 2009, Plaintiff was 16 In addition to the noted evidence of malingering, the ALJ 17 extensively reviewed the medical evidence and reasonably determined 18 that 19 limitations. (AR at 393-395.) As noted by the ALJ, the consultative 20 examiners, reviewing physicians and the testifying medical expert 21 all opined that Plaintiff was capable of working. (AR at 15-16, 22 254-268, 304-315, 316-323, 355-363.) The ALJ also noted that, 23 during an initial interview with Plaintiff, a Social Security 24 claims 25 difficulty sitting, standing, walking or using her hands. (AR at 26 393, citing AR at 205-207.) Although this is not a sufficient 27 reason in and of itself for discrediting Plaintiff s testimony, an 28 ALJ may take note that a claimant s subjective complaints are it did not support representative did Plaintiff s not observe 6 alleged symptoms Plaintiff having and any 1 inconsistent with her conduct. See Thomas, 278 F.3d 947, 958-59 2 (9th Cir. 2002) (inconsistency between the claimant s testimony and 3 conduct supported rejection of claimant s credibility). 4 In sum, the affirmative evidence of malingering, in addition 5 to 6 Plaintiff s subjective complaints, was a sufficient reason to 7 discount Plaintiff s credibility, and Plaintiff is therefore not 8 entitled to relief on this claim. the 9 B. lack The of ALJ medical evidence Properly in Determined the that record to Plaintiff support Was Not 10 Disabled at Step 5 of the Sequential Evaluation Process 11 Plaintiff contends that the ALJ erred in determining disability 12 at Step 5 of the sequential process because the description of the 13 jobs that the ALJ determined that Plaintiff could perform, as 14 described in the Dictionary of Occupational Titles ( DOT ), require 15 more 16 determination of Plaintiff s RFC. (Joint Stip. at 13.) walking and standing than provided for in the ALJ s 17 Based upon the testimony of the VE, the ALJ determined that 18 Plaintiff could perform the occupations of counter clerk (DOT 19 249.366-010) and school bus monitor (DOT 372.667-042), which are 20 both classified as light work, and election clerk (DOT 205.367- 21 030), which is classified as sedentary work. (AR at 16-19, 396- 22 397.) In determining Plaintiff s RFC, the ALJ concluded that 23 Plaintiff could stand and/or walk for one hour in an eight-hour 24 work day; sit for eight hours in an eight-hour work day with normal 25 breaks such as every two hours; and stand and stretch for one to 26 three minutes per hour as needed. (AR at 392.) 27 Plaintiff contends that the requirements of counter clerk and 28 school bus monitor conflict with the ALJ s RFC assessment because 7 1 the descriptions of the jobs require more walking and/or standing 2 than just one hour per day. (Joint Stip. at 16-17.) Although light 3 work is in fact defined as requiring a good deal of walking or 4 standing, a job may also be defined as light work when it 5 involves sitting most of the time with pushing and pulling of arm 6 or leg controls. 20 C.F.R. § 416.967(b). When questioned by 7 Plaintiff s 8 counter clerk job primarily involved sitting and that the job fit 9 the hypothetical question posed by the ALJ. (AR at 17-18, 20-21.) 10 The ALJ was permitted to rely on the VE s expert testimony. Bayliss 11 v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005); see also 12 Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (noting that 13 the ALJ may take administrative notice of any reliable job 14 information, including ... the services of a vocational expert ... 15 even though the job traits may vary from the way the job title is 16 classified in the DOT ) (internal citations omitted). attorney, the VE specifically testified that the 17 In addition, Plaintiff was capable of performing the election 18 clerk position, which is classified as sedentary work. Sedentary 19 work involves sitting, [although] a certain amount of walking and 20 standing is often necessary. Jobs are sedentary if walking and 21 standing are required occasionally .... 20 C.F.R. § 416.967(a). If 22 a person is capable of light work, he or she can also do sedentary 23 work. 20 C.F.R. § 416.967(b). Therefore, given Plaintiff s RFC, she 24 was capable of performing the sedentary job of election clerk. 25 Even assuming without deciding that Plaintiff was unable to 26 perform the job of school bus monitor given her inability to stand 27 for more than one hour per day, she was not precluded from the jobs 28 of counter clerk and election clerk. The VE testified that there 8 1 were 13,500 regional and 340,000 national jobs available as a 2 counter clerk and 9,350 regional and 98,000 national jobs available 3 as an election clerk. Accordingly, given the number of jobs 4 available both regionally and nationally, substantial evidence 5 supports the ALJ s finding that Plaintiff was not disabled. See 6 Thomas, 278 F.3d at 960 (finding 1,300 jobs in the state to be 7 sufficient); Moncanda v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) 8 (finding 2,300 jobs in the county and 64,000 nationwide to be 9 sufficient). Thus, any possible error in finding that Plaintiff 10 could perform the job of school bus monitor was harmless. See 11 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (harmless 12 error rule applies to review of administrative decisions regarding 13 disability); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 14 Accordingly, the ALJ properly determined at step 5 of the 15 sequential evaluation process that there were jobs that exist in 16 significant numbers in the national economy that Plaintiff could 17 perform, and therefore substantial evidence supports the ALJ s 18 determination that Plaintiff is not disabled. 19 20 IV. Conclusion 21 For the reasons stated above, the decision of the Social 22 Security Commissioner is AFFIRMED and the action is DISMISSED with 23 prejudice. 24 Dated: May 2, 2012 25 26 ______________________________ Marc L. Goldman United States Magistrate Judge 27 28 9
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