Alina Ritchie v. Michael J Astrue, No. 5:2012cv00311 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ALINA RITCHIE, 12 Plaintiff, 13 14 15 16 17 18 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ I. 21 22 seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 23 24 25 26 27 28 SUMMARY On March 20, 2012, plaintiff Alina Ritchie ( plaintiff ) filed a Complaint 19 20 ) Case No. EDCV 12-311 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; March 26, 2012 Case Management Order ¶ 5. /// /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On January 20, 2009 plaintiff filed applications for Supplemental Security 7 Income and Disability Insurance Benefits. (Administrative Record ( AR ) 10, 8 111, 118). Plaintiff asserted that she became disabled on January 1, 2006, due to 9 depression, fatigue and extreme exhaustion. (AR 145-46). The ALJ examined the 10 medical record and heard testimony from plaintiff (who was represented by 11 counsel) on October 1, 2010. (AR 24-44). 12 On November 5, 2010, the ALJ determined that plaintiff was not disabled 13 through the date of the decision. (AR 10-19). Specifically, the ALJ found: 14 (1) plaintiff suffered from the following severe impairments: degenerative 15 changes in the lumbar spine, obesity, and mood disorder (AR 12-13); 16 (2) plaintiff s impairments, considered singly or in combination, did not meet or 17 medically equal a listed impairment (AR 13-14); (3) plaintiff retained the residual 18 functional capacity to perform medium work (20 C.F.R. §§ 404.1567(c), 19 416.967(c)) with additional nonexertional limitations2 (AR 14); (4) plaintiff could 20 not perform her past relevant work (AR 18); (5) there are jobs that exist in 21 22 1 The harmless error rule applies to the review of administrative decisions regarding 23 disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 24 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of 25 application of harmless error standard in social security cases). 26 27 28 2 The ALJ determined that plaintiff: (1) could lift and/or carry 25 pounds frequently and 50 pounds frequently [sic.]; (2) stand and/or walk for six hours out of an eight-hour workday; (3) sit for six hours out of an eight-hour workday; and (4) was limited to simple, routine, repetitive tasks in a non-public setting. (AR 14). 2 1 significant numbers in the national economy that plaintiff could perform, 2 specifically dishwasher, laundry worker, hand packager, cleaner and housekeeper 3 (AR 18-19); and (6) plaintiff s allegations regarding her limitations were not 4 credible to the extent they were inconsistent with the ALJ s residual functional 5 capacity assessment (AR 15). 6 The Appeals Council denied plaintiff s application for review. (AR 1). 7 III. APPLICABLE LEGAL STANDARDS 8 A. 9 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 10 unable to engage in any substantial gainful activity by reason of a medically 11 determinable physical or mental impairment which can be expected to result in 12 death or which has lasted or can be expected to last for a continuous period of at 13 least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 14 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of 15 performing the work claimant previously performed and incapable of performing 16 any other substantial gainful employment that exists in the national economy. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 18 § 423(d)(2)(A)). 19 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 20 sequential evaluation process: 21 (1) 22 23 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 24 the claimant s ability to work? If not, the claimant is not 25 disabled. If so, proceed to step three. 26 27 (3) Does the claimant s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. 28 /// 3 1 Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If 2 not, proceed to step four. 3 (4) Does the claimant possess the residual functional capacity to 4 perform claimant s past relevant work? If so, the claimant is 5 not disabled. If not, proceed to step five. 6 (5) Does the claimant s residual functional capacity, when 7 considered with the claimant s age, education, and work 8 experience, allow the claimant to adjust to other work that 9 exists in significant numbers in the national economy? If so, 10 the claimant is not disabled. If not, the claimant is disabled. 11 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 12 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 13 The claimant has the burden of proof at steps one through four, and the 14 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 15 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also 16 Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability). 17 B. 18 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 19 benefits only if it is not supported by substantial evidence or if it is based on legal 20 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 21 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 22 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 23 mind might accept as adequate to support a conclusion. Richardson v. Perales, 24 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 25 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 26 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 27 To determine whether substantial evidence supports a finding, a court must 28 consider the record as a whole, weighing both evidence that supports and 4 1 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 2 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 3 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 4 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 5 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 6 IV. DISCUSSION 7 A. The ALJ Was Not Required to Obtain Testimony from a 8 Vocational Expert at Step Five 9 1. 10 Pertinent Law At step five of the sequential evaluation process, the Commissioner has the 11 burden to demonstrate that the claimant can perform some other work that exists in 12 significant numbers in the national economy, taking into account the claimant s 13 residual functional capacity, age, education, and work experience. Tackett, 180 14 F.3d at 1100 (citing 20 C.F.R. § 404.1560(b)(3)); 42 U.S.C. § 423(d)(2)(A). The 15 Commissioner may satisfy this burden, depending upon the circumstances, by the 16 testimony of a vocational expert or by reference to the Medical-Vocational 17 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly 18 known as the Grids ). Tackett, 180 F.3d at 1100-01 (citations omitted). 19 When a claimant suffers only exertional (strength-related) limitations, the 20 ALJ must consult the Grids. Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th 21 Cir.), as amended (2006). When a claimant suffers only non-exertional 22 limitations, the Grids (which are predicated solely on a claimant s exertional 23 limitations) are generally inappropriate and the ALJ must rely on other evidence.3 24 25 3 An ALJ is required to seek the assistance of a vocational expert when the non-exertional 26 limitations are at a sufficient level of severity such as to the make the Grids inapplicable to the 27 particular case. Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). The severity of limitations at step five that would require use of a vocational expert must be greater than the 28 severity of impairments determined at step two. Id. 5 1 Id. When a claimant suffers from both exertional and nonexertional limitations, 2 the ALJ must first determine whether the Grids mandate a finding of disability 3 with respect to exertional limitations. See Lounsburry, 468 F.3d at 1116; Cooper 4 v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989). If so, the claimant must be 5 awarded benefits. Cooper, 880 F.2d at 1155. If not, and if the claimant suffers 6 from significant and sufficiently severe non-exertional limitations, not accounted 7 for in the Grids, the ALJ must take the testimony of a vocational expert. Hoopai v. 8 Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). 9 10 2. Analysis Plaintiff essentially contends that the ALJ s non-disability finding at step 11 five was not supported by substantial evidence because the ALJ relied on the 12 Grids specifically, 20 C.F.R. Part 404, Subpart P, Appendix 2 Section 203.29 13 ( Section 203.29 ) rather than testimony from a vocational expert. (Plaintiff s 14 Motion at 2-6). Plaintiff s argument lacks merit. 15 Here, substantial evidence supports the ALJ s finding that plaintiff s non- 16 exertional limitation to simple, routine, repetitive tasks in a non-public setting 17 [had] little or no effect on plaintiff s ability to do unskilled medium work. 4 18 (AR 15). As the ALJ noted, treatment records reflect that plaintiff received 19 routine, conservative, and non-emergency treatment for her mental impairments. 20 More specifically, although plaintiff had previously been treated for depression, 21 treatment records for the period after plaintiff s alleged onset date reflect only that 22 plaintiff reported multiple stressors in mid-2006 but stopped psychiatric 23 treatment in June 2006. (AR 15-16) (citing Exhibit 3F [AR 220-322]). In 24 addition, an examining psychiatrist found plaintiff s overall psychiatric limitations 25 to be none to mild. (AR 16) (citing Exhibit 7F [AR 345-46]). The ALJ noted 26 27 28 4 Plaintiff does not challenge the ALJ s assessment that she has the residual functional capacity to perform the full range of work at the medium exertional level. (Plaintiff s Motion at 2-6). 6 1 that the state agency reviewing physicians found limitations from plaintiff s 2 mental impairments to range only from non-severe to mild. (AR 17) (citing 3 Exhibits 8F [AR 349-59], 9F [AR 360-62]; 12F [AR 382-92]; 13F [AR 393-94]; 4 18F [AR 432-33]). The ALJ also noted that a 2009 mental status examination for 5 plaintiff was fairly normal. (AR 18) (citing Exhibit 11F at 1 [AR 378]). 6 Although plaintiff argues in a conclusory manner that the non-exertional 7 limitations identified by the ALJ have significant vocational ramifications 8 (Plaintiff s Motion at 4), the Court will not second-guess the ALJ s reasonable 9 determination that they do not, even if the medical evidence could give rise to 10 inferences more favorable to plaintiff. See Rollins v. Massanari, 261 F.3d 853, 11 857 (9th Cir. 2001) (not court s role to second-guess ALJ s reasonable 12 interpretation of the evidence) (citation omitted); cf. Carmickle v. Commissioner, 13 Social Security Administration, 533 F.3d 1155, 1161 n.2 (courts ordinarily will 14 not consider matters on appeal that are not specifically and distinctly argued in an 15 appellant s opening brief ) (citation and internal quotation marks omitted). 16 Since the ALJ essentially concluded that the Grids accurately and 17 completely accounted for all of plaintiff s impairments, the ALJ properly relied on 18 Section 203.29 to find plaintiff not disabled.5 See, e.g., Hoopai, 499 F.3d at 19 1076-77 (holding that ALJ properly relied on the Grids where substantial evidence 20 supported the ALJ s conclusion that the claimant s depression was not sufficiently 21 severe to limit the range of work claimant could do); Prather v. Astrue, 2010 WL 22 2102824, *12 (E.D. Cal. May 24, 2010) (rejecting plaintiff s argument that ALJ 23 erred by not consulting vocational expert at step five where ALJ determined that 24 25 26 27 28 5 Plaintiff correctly notes that at step five the ALJ identified specific representative jobs for plaintiff but did not provide the Dictionary of Occupational Titles ( DOT ) codes for such jobs. (Plaintiff s Motion at 5; see AR 19). To the extent the ALJ erred in this respect, however, any error was harmless since the ALJ was not required to identify specific jobs in this case. See Odle v. Heckler, 707 F.2d 439, 440 (9th Cir.1983) (courts need not identify specific jobs when Grids are applied) (citation omitted). 7 1 plaintiff s non-exertional limitations had little or no effect on the occupational 2 base of unskilled medium work ). 3 Accordingly, plaintiff is not entitled to a reversal or remand on this basis. 4 B. 5 Plaintiff contends that the ALJ inadequately evaluated the credibility of her The ALJ Properly Evaluated Plaintiff s Credibility 6 subjective complaints.6 (Plaintiff s Motion at 6-7). The Court disagrees. 7 8 1. Pertinent Law Questions of credibility and resolutions of conflicts in the testimony are 9 functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th 10 Cir. 2006). If the ALJ s interpretation of the claimant s testimony is reasonable 11 and is supported by substantial evidence, it is not the court s role to second12 guess it. Rollins, 261 F.3d at 857. 13 An ALJ is not required to believe every allegation of disabling pain or other 14 non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) 15 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes 16 the existence of a medically determinable impairment that could reasonably give 17 rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as 18 to the credibility of the claimant s statements about the symptoms and their 19 functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the 20 record includes objective medical evidence that the claimant suffers from an 21 impairment that could reasonably produce the symptoms of which the claimant 22 complains, an adverse credibility finding must be based on clear and convincing 23 reasons. Carmickle, 533 F.3d at 1160 (citations omitted). The only time this 24 standard does not apply is when there is affirmative evidence of malingering. Id. 25 26 27 28 6 The argument plaintiff provides in support of this claim appears to pertain to an entirely different claimant. (Plaintiff s Motion at 6-8). Nonetheless, the Court has evaluated whether the ALJ s credibility evaluation in plaintiff s case was supported by substantial evidence and free from material error. 8 1 The ALJ s credibility findings must be sufficiently specific to allow a reviewing 2 court to conclude the ALJ rejected the claimant s testimony on permissible 3 grounds and did not arbitrarily discredit the claimant s testimony. Moisa v. 4 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). 5 To find the claimant not credible, an ALJ must rely either on reasons 6 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 7 contradictions in the testimony, or conflicts between the claimant s testimony and 8 the claimant s conduct (e.g., daily activities, work record, unexplained or 9 inadequately explained failure to seek treatment or to follow prescribed course of 10 treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 11 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant s 12 testimony solely because it is not substantiated affirmatively by objective medical 13 evidence, the lack of medical evidence is a factor that the ALJ can consider in his 14 credibility assessment. Burch, 400 F.3d at 681. 15 16 2. Analysis First, the ALJ properly discredited plaintiff s subjective complaints due to 17 internal conflicts within plaintiff s own statements and testimony. See 18 Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir.), as amended 19 (1997) (in weighing plaintiff s credibility, ALJ may consider inconsistencies 20 either in [plaintiff s] testimony or between his testimony and his conduct ); see 21 also Fair, 885 F.2d at 604 n.5 (ALJ can reject pain testimony based on 22 contradictions in plaintiff s testimony). As the ALJ noted, plaintiff testified that 23 she received unemployment benefits during her period of alleged disability, which 24 required plaintiff to repeatedly certify she was ready, willing and able to work. 25 (AR 15) (citing AR 32-33). The ALJ could properly conclude that such evidence 26 of plaintiff s apparent dishonesty eroded the credibility of plaintiff s other 27 testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) ( In 28 assessing the claimant s credibility, the ALJ may use ordinary techniques of 9 1 credibility evaluation, such as considering the claimant s reputation for 2 truthfulness and any inconsistent statements in her testimony. ). 3 Second, the ALJ properly discredited plaintiff s subjective complaints as 4 inconsistent with plaintiff s daily activities. See Thomas v. Barnhart, 278 F.3d 5 947, 958-59 (9th Cir. 2002) (inconsistency between the claimant s testimony and 6 the claimant s conduct supported rejection of the claimant s credibility); Verduzco 7 v. Apfel,188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant s 8 testimony and actions cited as a clear and convincing reason for rejecting the 9 claimant s testimony). For example, the ALJ noted that in spite of plaintiff s 10 alleged exertional limitations, plaintiff acknowledged that she maintains a valid 11 driver s license and continues to drive independently. (AR 15, 41). 12 Third, the ALJ properly discredited plaintiff s subjective complaints as 13 inconsistent with plaintiff s conservative medical treatment. See Meanel v. Apfel, 14 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ properly considered, as part of 15 credibility evaluation, treating physician s failure to prescribe, and claimant s 16 failure to request, medical treatment commensurate with the supposedly 17 excruciating pain alleged, and the minimal, conservative treatment ) (citing 18 Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc)); see Fair, 885 19 F.2d at 604 (ALJ permissibly considered discrepancies between the claimant s 20 allegations of persistent and increasingly severe pain and the nature and extent 21 of treatment obtained). For example, as noted above, the medical records reflect 22 that plaintiff received routine, conservative, and non-emergency treatment for her 23 mental impairments, and stopped psychiatric treatment within six months after the 24 alleged onset date (i.e., in June 2006). (AR 15-16, 220-322). In addition, as the 25 ALJ noted, although plaintiff testified that she was unable to work due to pain in 26 her back and hips, she also stated that she did not like narcotics, and took only 27 over-the-counter pain medication (i.e. Tylenol, aspirin or Advil). (AR 15, 38-39); 28 see Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (ALJ may consider 10 1 failure to seek treatment or to follow a prescribed course of treatment in 2 assessing credibility). While an ALJ may not reject symptom testimony where a 3 claimant provides evidence of a good reason for not taking medication, Smolen, 4 80 F.3d at 1284 (citations omitted), plaintiff has not presented such a sufficient 5 reason. 6 Finally, the ALJ properly discredited plaintiff s subjective symptom 7 testimony due, in part, to the absence of supporting objective medical evidence. 8 Burch, 400 F.3d at 681; Rollins, 261 F.3d at 857 ( While subjective pain 9 testimony cannot be rejected on the sole ground that it is not fully corroborated by 10 objective medical evidence, the medical evidence is still a relevant factor in 11 determining the severity of the claimant s pain and its disabling effects. ) (citing 12 20 C.F.R. § 404.1529(c)(2)). For example, as the ALJ noted, the report of a 13 complete internal medicine evaluation of plaintiff reflected no significant 14 impairments in the range of motion despite [plaintiffs] subjective complaints of 15 back pain. (AR 16) (citing Exhibit 4F at 5 [AR 327]). The ALJ also noted that 16 plaintiff s treatment records do not reflect that in 2010 plaintiff complained of 17 back pain, depression or anxiety, or received actual treatment for any of 18 [plaintiff s] alleged disabling impairments. (AR 16) (citing Exhibit 19F [AR 19 435-71]). 20 Accordingly, plaintiff is not entitled to a reversal or remand on this basis. 21 V. CONCLUSION 22 For the foregoing reasons, the decision of the Commissioner of Social 23 Security is affirmed. 24 LET JUDGMENT BE ENTERED ACCORDINGLY. 25 DATED: July 24, 2012 26 27 28 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 11

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