Yvett Lilly v. Michael J. Astrue, No. 5:2012cv00381 - Document 18 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. For the reasons stated above, it is ORDERED that the decision of the Commissioner be affirmed and this case be dismissed with prejudice. (twdb)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 YVETT LILLY, 10 Plaintiff, 11 12 13 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-00381-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Yvett Lilly seeks judicial review of the Commissioner s 18 final decision denying her applications for Social Security Disability 19 Insurance Benefits ( DIB ) and Supplemental Security Income ( SSI ) 20 benefits under Title XVI of the Social Security Act. 42 U.S.C. § 1381 et 21 seq. For the reasons set forth below, the decision of the Commissioner 22 is affirmed and the matter is dismissed with prejudice. 23 24 I. Background 25 Plaintiff was born on November 8, 1966. (Administrative Record 26 ( AR ) at 125.) She has an eleventh grade education and has relevant 27 work experience as a truck driver. (AR at 150, 153.) Plaintiff filed her 28 applications on November 5, 2008, alleging disability since September 7, 1 2 2006, due to right shoulder surgery, osteoarthritis and carpal tunnel syndrome. (AR at 52, 125.) 3 Plaintiff s applications were denied initially on February 17, 4 2009, and upon reconsideration on December 3, 2009. (AR at 56-60, 63- 5 67.) An administrative hearing was held on December 7, 2010, before 6 Administrative 7 represented by counsel, testified, as did a Vocational Expert ( VE ). 8 (AR at 27-50.) Law Judge ( ALJ ) William K. Mueller. Plaintiff, 9 On January 12, 2011, ALJ Mueller issued an unfavorable decision. 10 (AR at 10-20.) The ALJ found that the Plaintiff had not engaged in 11 substantial gainful activity since the alleged onset date. (AR at 12.) 12 The ALJ further found that the medical evidence established that 13 Plaintiff suffered from the following severe impairments: right shoulder 14 AC joint degenerative disc disease and possible carpal tunnel syndrome. 15 (Id.) However, the ALJ concluded that Plaintiff s impairments did not 16 meet, or were not medically equal to, one of the listed impairments in 17 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR at 13.) 18 The ALJ found that Plaintiff retained the residual functional 19 capacity ( RFC ) to perform light work with the following limitations: 20 the claimant is limited to lifting and/or carrying 20 pounds 21 occasionally and 10 pounds frequently; she can stand for 6 22 hours 23 restrictions; she is precluded from walking on uneven terrain; 24 she cannot perform overhead work with the right arm; she is 25 limited to occasional above shoulder work with the right arm; 26 she can handle and finger on a frequent basis bilaterally; and 27 the claimant must avoid exposure to extreme cold, extreme 28 vibrations, and hazardous heights and machinery. out of an 8-hour workday 2 and has no sitting 1 (AR at 13-14.) 2 The ALJ concluded that Plaintiff s impairments prevented her from 3 performing her past relevant work. (AR at 18.) However, based on the 4 VE s testimony, the ALJ found that there were jobs that existed in 5 significant numbers in the national economy that Plaintiff could 6 perform. (AR at 19-20.) The ALJ concluded that Plaintiff was not 7 disabled within the meaning of the Social Security Act. See 20 C.F.R. 8 § 416.920(f). (AR at 20.) 9 On February 7, 2012, the Appeals Council denied review (AR at 1-3). 10 Plaintiff then timely commenced this action for judicial review. On 11 September 17, 2012, the parties filed a Joint Stipulation ( Joint 12 Stip. ) of disputed facts and issues. Plaintiff contends that the ALJ 13 erred by: (1) improperly concluding at step three of the sequential 14 process that Plaintiff s impairments did not medically meet or equal a 15 listed impairment and (2) failing to properly consider the treating 16 physician s opinion. (Joint Stip. at 2.) Plaintiff seeks reversal of the 17 Commissioner s denial of her applications and payment of benefits or, 18 in the alternative, remand for a new administrative hearing. (Joint 19 Stip. at 20.) The Commissioner requests that the ALJ s decision be 20 affirmed. (Joint Stip. at 20-21.) 21 22 II. Standard of Review 23 Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 25 decision must be upheld unless the ALJ s findings are based on legal 26 error or are not supported by substantial evidence in the record as a 27 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra 28 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 3 1 such evidence as a reasonable person might accept as adequate to support 2 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 3 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 4 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 5 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 6 evidence supports a finding, the reviewing court must review the 7 administrative record as a whole, weighing both the evidence that 8 supports and the evidence that detracts from the Commissioner s 9 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 10 the evidence can support either affirming or reversing the ALJ s 11 conclusion, the reviewing court may not substitute its judgment for 12 that of the ALJ. Robbins, 466 F.3d at 882. 13 14 III. Discussion 15 16 17 A. The ALJ Properly Determined That Plaintiff s Impairments Do Not Meet or Equal a Listed Impairment Plaintiff contends that the ALJ erred by summarily concluding that 18 her combined impairments did not meet or equal one of the impairments 19 listed in 20 C.F.R. § 404, Subpt. P, App. 1. Plaintiff also claims that 20 the ALJ should have found that her combined impairments medically equal 21 to Listing 1.02A, because the ALJ s determination that Plaintiff was 22 precluded from walking on uneven surfaces means that Plaintiff has an 23 inability to ambulate effectively, as defined in Listing 1.00B2b. 24 (Joint Stip. at 3-9.) These contentions lack merit. 25 Plaintiff first contends that the ALJ erred by summarily 26 determining, at step three of the sequential process, that Plaintiff s 27 impairments did not meet or equal a listed impairment. (Joint Stip. at 28 4.) At step three of the sequential evaluation process, an ALJ considers 4 1 whether an applicant has an impairment or combination of impairments 2 that meet or medically equal an impairment included in the federal 3 regulations listing of disabling impairments. If the claimant's 4 impairment matches or is equal to one of the listed impairments, she 5 qualifies for benefits without further inquiry. 20 C.F.R. § 416.920(d), 6 Sullivan v. Zebley, 493 U.S. 521, 525 (1990). 7 Plaintiff argues that the ALJ erred by not citing or discussing any 8 specific section of the listings and by failing to explain how the 9 medical evidence in the record supported his finding at step three. 10 (Joint Stip. at 3.) Rather, the ALJ merely noted that the medical record 11 lacked any evidence of impairments that would meet or equal a listed 12 impairment. (AR at 13.) 13 An ALJ is required to adequately explain the basis for his or her 14 determination that an applicant s impairments do not equal a listing. 15 Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). However, an ALJ 16 is not required to state why a claimant failed to satisfy every 17 different section of the listing impairments. Gonzalez v. Sullivan, 914 18 F.2d 1197, 1201 (9th Cir. 1990). Accordingly, a well-developed 19 discussion of the factual basis of a claimant s impairments elsewhere 20 in a hearing decision may, under certain circumstances, support an 21 unexplained finding of no medical equivalence at step three. Id. at 1201 22 (finding an ALJ s four-page summary of the record an adequate basis for 23 unexplained statement that the applicant s impairments did not meet or 24 equal any listing). Here, the ALJ reviewed Plaintiff s medical history 25 in detail, including Plaintiff s shoulder impairment, obesity and claims 26 of pain in her hands, arms, low back, knee and thigh. (AR at 16-18.) The 27 28 5 1 ALJ also reviewed Plaintiff s hearing testimony1 and the opinions of the 2 reviewing physicians in determining that Plaintiff was not disabled. (AR 3 at 15, 18.) This review of the evidence supports the ALJ s step three 4 finding under Gonzalez. The ALJ did not err in failing to explain his 5 finding that Plaintiff s impairments were not medically equivalent to 6 any listed impairments. See Howard ex. rel. Wolff v. Barnhart, 341 F.3d 7 1006, 1012 (9th Cir. 2003) (finding that an ALJ is not required to 8 discuss every piece of evidence in the record in reaching a disability 9 determination). The ALJ provided ample specific and legitimate reasons, 10 supported by substantial evidence in the record, for finding that 11 Plaintiff was not disabled. 12 Plaintiff further contends that the combined impairments of her 13 hips, ankles and knee medically equal Listing 1.02A. Section 1.01, et 14 s., of the disability listings cover impairments of the musculoskeletal 15 system. Listing 1.02, entitled: Major dysfunction of a joint(s) (due 16 to any cause) provides as follows: 17 Characterized by gross anatomical deformity (e.g., 18 subluxation, contracture, bony or fibrous ankylosis, instability) 19 and chronic joint pain and stiffness with signs of limitation of 20 motion or other abnormal motion of the affected joint(s), and 21 findings on appropriate medically acceptable imaging of joint 22 space narrowing, bony destruction, or ankylosis of the affected 23 joint(s). With: 24 A. Involvement of one major peripheral weight-bearing 25 joint (i.e., hip, knee, or ankle) resulting in 26 inability to ambulate effectively, as defined in 27 1 28 The ALJ found Plaintiff s hearing testimony not fully credible, a conclusion which Plaintiff does not challenge here. 6 1 2 1.00B2b; or B. Involvement of one major peripheral joint in each 3 upper extremity (i.e., shoulder, elbow, or wrist- 4 hand), resulting in inability to perform fine and 5 gross movements effectively, as defined in 1.00B2c. 6 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.02. 7 Plaintiff contends that impairments of her left hip, ankles, and 8 right knee medically equal Listing 1.02A. (Joint Stip. at 7.) But 9 Plaintiff has failed to show that her combined impairments are medically 10 equivalent to a listed impairment. The mere diagnosis of a listed 11 impairment is not sufficient to sustain a finding of disability. 20 12 C.F.R. § 404.1525(d); Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 13 1985). Indeed, [i]t is not enough for an applicant to show he has a 14 severe impairment that is one of the listed impairments to find him per 15 se disabled. Young v. Sullivan, 911 F.2d 180, 181 (9th Cir. 1990). To 16 meet a listed impairment, a claimant must present medical findings 17 establishing that he meets each characteristic of the listed impairment. 18 20 C.F.R. § 404.1525(d); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 19 1999). To equal a listed impairment, a claimant must establish 20 symptoms, signs and laboratory findings at least equal in severity and 21 duration to the characteristics of a relevant listed impairment, or, 22 if a claimant s impairment is not listed, then to the listed impairment 23 most like the claimant s impairment. Tackett, 180 F.3d at 1099 24 (quoting 20 C.F.R. § 404.1526). 25 In this case, Plaintiff has failed to show how the medical evidence 26 satisfies the criteria of Listing 1.02A. Plaintiff makes the conclusory 27 statement that her combined impairments meet the disability listing and 28 occasionally cites to her medical records without establishing how these 7 1 medical reports demonstrate that she has met the requirements of Listing 2 1.02A. The medical records to which Plaintiff refers in support of her 3 argument only provide diagnoses and results; they do not state any 4 limitations. 5 Furthermore, no physician has used or interpreted Plaintiff s 6 medical records to find that Plaintiff has an impairment or combined 7 impairments which meet or medically equal Listing 1.02A. Rather, 8 Plaintiff s treating physicians, Dr. Michael Einbund, M.D. and Dr. Raja 9 Dhalla, M.D., treated Plaintiff in the context of her worker s 10 compensation claim. Although Dr. Einbund opined that Plaintiff was 11 temporarily totally disabled under California worker s compensation 12 rules through Plaintiff s last insured date, that conclusion is not 13 determinative of an entitlement to benefits under social security law. 14 See Booth v. Barnhart, 181 F.Supp.2d 1099, 1104-05 (C.D. Cal. 2002) 15 (citing Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996)) and 16 Desrosiers v. Secretary of Health & Human Services, 846 F.2d 573, 576 17 (9th Cir. 1988)); 20 C.F.R. § 404.1504. The determination that Plaintiff 18 was temporarily totally disabled under state worker s compensation rules 19 indicated that she could not return to her previous job as a truck 20 driver, not that she was precluded from all substantial gainful 21 activity. Aside from the conclusion that Plaintiff could not return to 22 her previous work, Dr. Einbund did not provide specific functional 23 limitations caused by Plaintiff s impairments that would preclude work. 24 In addition, Plaintiff argues that she meets or equals section 25 1.03's requirement of an inability to ambulate effectively because the 26 ALJ determined that Plaintiff s RFC precluded her from walking on uneven 27 surfaces. (Joint Stip. at 8-9.) Although the ALJ s finding that 28 Plaintiff cannot walk on uneven surfaces may indicate that Plaintiff is 8 1 unable to walk a block at a reasonable pace on rough or uneven 2 surfaces, which could impact her ability to ambulate effectively, (see 3 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00B2b), the inability to 4 ambulate effectively in and of itself is not sufficient to establish 5 that Plaintiff s impairment equals Section 1.02. See, e.g., Reese v. 6 Astrue, 2012 WL 137567, *4 (C.D.Cal. 2012). AS discussed in detail 7 above, Plaintiff has failed to show that her impairment meets or equals 8 each of the characteristics of Section 1.02. 9 When considering the record as a whole, it is clear that Plaintiff 10 has not met her burden of demonstrating that her symptoms met or equaled 11 the criteria of Listing 1.02A. See, e.g., Bowen v. Yuckert, 482 U.S. 12 137, 145-152 (1987) (placing burden on claimant to produce evidence that 13 impairment meets listing). The ALJ correctly found, at step three of the 14 sequential analysis, that Plaintiff s impairments do not meet one of the 15 listed impairments. Accordingly, Plaintiff is not entitled to relief on 16 this claim. 17 18 19 B. The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff s Treating Physician Plaintiff contends that the ALJ erred in failing to give 20 controlling weight to the opinion of Plaintiff s treating physician, Dr. 21 Einbund. (Joint Stip. at 12.) On January 7, 2010, Dr. Einbund completed 22 an assessment which diagnosed Plaintiff with cervical spine strain, 23 status post-op right shoulder with restricted motion, bilateral carpal 24 tunnel syndrome, lumbar spine strain, right knee sprain and bilateral 25 ankle sprain. (AR at 313.) In addition, Dr. Einbund opined that 26 Plaintiff was unable to work and was temporarily totally disabled. (Id.) 27 // 28 An ALJ should generally accord greater probative weight to a 9 1 treating physician s opinion than to opinions from non-treating sources. 2 See 20 C.F.R. § 404.1527(d)(2). The ALJ must give specific and 3 legitimate reasons for rejecting a treating physician s opinion in favor 4 of a non-treating physician s contradictory opinion. Orn v. Astrue, 495 5 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 6 1996). However, the ALJ need not accept the opinion of any medical 7 source, including a treating medical source, if that opinion is brief, 8 conclusory, and inadequately supported by clinical findings. Thomas v. 9 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. 10 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The factors to be 11 considered by the adjudicator in determining the weight to give a 12 medical opinion include: [l]ength of the treatment relationship and the 13 frequency of examination by the treating physician; and the nature and 14 extent of the treatment relationship between the patient and the 15 treating physician. Orn, 495 F.3d at 631-33; 20 C.F.R. §§ 16 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii). 17 The ALJ provided legitimate reasons for refusing to give Dr. 18 Einbund s opinion controlling weight, which were supported by 19 substantial evidence in the record. The ALJ reviewed and summarized 20 Plaintiff s relevant medical records from March 2008 to October 2010. 21 (AR at 16-18.) After discussing these records in detail, the ALJ found 22 that Dr. Einbund s ongoing assessment that Plaintiff was temporarily 23 totally disabled was not fully credible because there were no treatment 24 records or diagnostic findings to support the extreme limitations found 25 by Dr. Einbund. (AR at 17, citing AR at 231, 247-248). In addition, Dr. 26 Einbund s own treatment records, which generally found that Plaintiff 27 had some pain and tenderness, contradicted his finding of extreme 28 limitations. (See, e.g., AR at 217-18, 221, 226, 277, 280, 284, 287-90, 10 1 294, 300, 321-24.) Moreover, to the extent that Dr. Einbund s opinion 2 that Plaintiff was disabled was based upon Plaintiff s own subjective 3 complaints of pain, the ALJ determined that Plaintiff was not fully 4 credible, a conclusion which Plaintiff does not challenge. See 5 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ( An ALJ may 6 reject a treating physician s opinion if it is based to a large extent 7 on a claimant s self-reports that have been properly discounted as 8 incredible. ) (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). 9 A review of Dr. Einbund s records reveals that they largely reflect 10 [Plaintiff s] reports of pain, with little independent analysis or 11 diagnosis. Tommasetti, 533 F.3d at 1041. 12 Accordingly, the ALJ properly gave the greatest weight to the 13 opinions of the reviewing state agency physicians, Drs. D. Rose, M.D. 14 and M. Mazury, M.D., who found Plaintiff capable of performing light 15 work. (AR at 18, 251-259, 301-310). The opinions of non-examining 16 physicians may serve as substantial evidence when the opinions are 17 consistent with independent clinical findings or other evidence in the 18 record. See Thomas, 278 F.3d at 957. 19 Finally, Plaintiff s contention that the ALJ should have re- 20 contacted Dr. Einbund for clarification or additional evidence is not 21 persuasive. An ALJ has a duty to re-contact a treating source only where 22 the record is ambiguous or inadequate. See 20 C.F.R. § 404.1513(b)(6); 23 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (explaining 24 that the ALJ s duty to develop the record is triggered if the record is 25 ambiguous or undeveloped). However, this is not a case where the 26 evidence was inadequate to assess Dr. Einbund s opinion or make a 27 disability determination. As noted above, neither the overall record nor 28 Dr. Einbund s own treatment notes support his conclusion that Plaintiff 11 1 could not work. The fact that the medical records do not support Dr. 2 Einbund s opinion does not render the records ambiguous such that the 3 ALJ s duty to supplement the record was triggered. Instead, Dr. 4 Einbund s opinion on the ultimate issue of disability was simply not 5 supported by the record. Accordingly, the ALJ did not err in rejecting 6 Dr. Einbund s opinion without re-contacting him for clarification. 7 8 IV. CONCLUSION 9 For the reasons stated above, it is ORDERED that the decision of 10 the Commissioner be affirmed and this case be dismissed with prejudice. 11 12 DATED: September 24, 2012 13 14 15 16 ______________________________ Marc L. Goldman United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 12

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