Virginia Valenzuela v. Carolyn W. Colvin, No. 5:2012cv01183 - Document 20 (C.D. Cal. 2013)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (See document for further details). (mr)
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Virginia Valenzuela v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 VIRGINIA VALENZUELA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the ) Social Security Administration, ) ) Defendant. ) _______________________________) NO. EDCV 12-1183 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Virginia Valenzuela ( Plaintiff ) seeks review of the Commissioner 22 of the Social Security Administration s ( the Commissioner or the 23 "Agency") decision denying her disability benefits.1 24 consented, pursuant to 28 U.S.C. § 636, to the jurisdiction of the The parties have 25 26 27 28 1 The Court notes that Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court orders that the caption be amended to substitute Carolyn W. Colvin for Michael J. Astrue as the defendant in this action. Dockets.Justia.com 1 undersigned United States Magistrate Judge. For the reasons stated 2 below, the decision of the Commissioner is AFFIRMED. 3 4 II. 5 PROCEDURAL HISTORY 6 7 On February 13, 2008, Plaintiff filed applications for Disability 8 Insurance Benefits ( DIB ) and Supplemental Security Income ( SSI ). 9 (Administrative Record ( AR ) 108, 111). Plaintiff alleged disability 10 beginning January 11, 2008 due to limitations from asthma, sleep apnea, 11 diabetes, high blood pressure and obesity. (AR 134). 12 Plaintiff s DIB and SSI applications on April 1, 2008, and after 13 reconsideration, on July 2, 2008. The Agency denied (AR 46-49, 54-59). 14 15 Plaintiff then filed a request for hearing before an Administrative 16 Law Judge ( ALJ ). (AR 61-68). The hearing took place on August 27, 17 2009, with ALJ Mason D. Harrell, Jr. presiding. (AR 20-41). 18 issued an unfavorable decision on November 17, 2009, finding Plaintiff 19 capable of performing a limited range of sedentary work. 20 Plaintiff then filed a request for review of the ALJ s decision before 21 the Appeals Council on January 5, 2010. 22 Appeals Council denied Plaintiff s request and the ALJ s decision became 23 the final decision of the Commissioner. (AR 5). The ALJ (AR 7-19). On July 17, 2010, the (AR 1-3). 24 25 On August 25, 2010, Plaintiff appealed the Appeals Council s 26 decision by seeking judicial review in this Court. 27 this 28 proceedings. Court remanded the (AR 541-53). matter to the On June 28, 2011, Commissioner for further Pursuant to this Court s remand order, the 2 1 Appeals Council instructed the ALJ to consider all of the relevant 2 medical evidence and give proper weight to the treating physician s 3 opinion, further assess Plaintiff s credibility, and obtain further 4 testimony from a vocational expert. (AR 493). 5 6 After this Court s January 6, 2012 order remanding the case for 7 further proceedings, a second hearing was held before a different ALJ. 8 (AR 558). 9 favorable decision, finding that Plaintiff s asthma condition met the 10 requirements of Listing 3.03(B) between January 31, 2006 and December 11 31, 2007, rendering her disabled during that period of time. 12 98). 13 date Plaintiff s disability ended. 14 2008, the ALJ found that Plaintiff had the residual functional capacity 15 to perform a limited range of sedentary work, and therefore could return 16 to her past relevant work. 17 action on July 20, 2012. On March 22, 2012, ALJ Duane D. Young issued a partially (AR 497- The ALJ also found medical improvement by January 1, 2008, the (AR 500). (AR 500, 504). Subsequent to January 1, Plaintiff filed the instant 18 19 III. 20 FACTUAL BACKGROUND 21 22 Plaintiff was born March 27, 1966. (AR 129). (AR 139). Plaintiff completed 23 school through the twelfth grade. 24 of asthma, obesity, sleep apnea, hypertension, and diabetes. 25 medical record shows that Plaintiff was primarily treated by Tarek Z. 26 Madhi, M.D. at Parkview Community Hospital. 27 physicians from the Riverside Family Physicians group saw Plaintiff on 28 3 Plaintiff has a history The However, several other 1 several occasions during the relevant time periods. 2 (AR 172-268, 269- 390, 391-446). 3 4 A. Medical History 5 6 On December 22, 2005, Plaintiff went to the (AR 350). emergency room 7 complaining of shortness of breath. 8 Plaintiff had an upper respiratory infection that she had been treating 9 with antibiotics for four days. (Id.). Intake notes show Plaintiff complained that her 10 nebulizer was not helping her breathing. 11 diagnosed 12 condition. 13 that Plaintiff received medical treatment for a bad cough and was 14 diagnosed with asthmatic bronchitis. 15 then in excess of 350 pounds. with an asthma (AR 353). exacerbation (Id.). and Plaintiff was discharged in stable Medical notes from December 30, 2005 indicate (AR 191). Plaintiff s weight was (Id.). 16 17 On May 7, 2006, Plaintiff was admitted to the emergency room for 18 shortness of breath, which she had been experiencing for four days. (AR 19 371-73). Plaintiff was diagnosed with exercise-induced asthma. (Id.). 20 Again, on May 8, 2006 Plaintiff presented with an asthma attack. 21 187). 22 minutes before experiencing shortness of breath. (Id.). 23 using Advair to control her asthma and Albuterol, through a nebulizer, 24 to control symptom flares. (Id.). 25 nebulizer three to four times a day, but that it did not help. 26 Plaintiff 27 Community Hospital on May 24, 2006 with another asthma attack and again 28 on May 31, 2006 for asthma and bronchitis. (AR Dr. Madhi noted that Plaintiff could walk approximately fifteen was then readmitted Plaintiff was Plaintiff stated that she used the to 4 the emergency room at (AR 366, 181-82). (Id.). Parkview 1 On July 18, 2006, Plaintiff was diagnosed with bronchitis at a 2 follow-up appointment. (AR 237). On August 9, 2006, Plaintiff visited 3 Dr. Madhi after participating in a sleep study. (AR 175). Dr. Madhi 4 directed Plaintiff to continue using Advair and Albuterol at home. 5 (Id.). 6 knee and had pain in her ankle. 7 later, Plaintiff had X-rays and a CT scan. (AR 195-98). 8 revealed that there was no fracture. 9 soft tissue swelling. On September 27, 2006, Plaintiff allegedly injured her right (AR 173, 378). (Id.). A week and a half The tests However, there was some (Id.). 10 11 On January 5, 2007, Plaintiff met with Dr. Madhi for chronic 12 asthma. (AR 231). 13 breath walking two blocks. 14 Plaintiff presented to the emergency room with severe shortness of 15 breath. 16 and was put on oxygen by Amiksha Patel, M.D. 17 2007, Plaintiff was discharged. 18 Plaintiff to take Albuterol four times a day as needed through a hand- 19 held nebulizer, take one puff of Advair twice a day and follow up in a 20 week. (AR 203-04). Further notes show Plaintiff was instructed to lose 21 weight. (AR 203). (AR 207). Dr. Madhi noted that Plaintiff became short of (Id.). Two days later, on January 7, 2007, Plaintiff was diagnosed with an asthma exacerbation (AR 203). (Id.). On January 9, Dr. Madhi instructed 22 23 On April 24, 2007, Plaintiff went to the emergency room with 24 shortness of breath, which had been increasing in severity for one week. 25 (AR 203). Neither Plaintiff s nebulizer, nor the several treatments she 26 received on intake, improved her condition. 27 diagnosed with an asthma exacerbation. 28 5 (Id.). (Id.). Plaintiff was 1 Nonetheless, Dr. Madhi s notes from May 7, 2007 show that Plaintiff 2 was doing well and that her asthma was stable. (AR 225-26). On July 3 27, 2007, Plaintiff reported to the emergency room with left upper chest 4 pain. 5 Plaintiff was discharged three days later, pain free. However, a heart attack was ruled out after several tests and (AR 295). 6 7 Plaintiff went to the emergency room on November 28, 2007. 8 441). Plaintiff was diagnosed with asthma and bronchitis and discharged 9 the same day. (AR 443). On December 2, 2007, Plaintiff returned to the (AR 315). (AR 10 emergency room with a moderate cough. Dr. Madhi diagnosed 11 Plaintiff with an asthma exacerbation, again discharging her on the same 12 day. (AR 317). 13 14 On December 31, 2007, Plaintiff went to the emergency room for a 15 laceration to the head. (AR 326). 16 and unlabored, her lungs were clear, and there were no signs of 17 respiratory distress. 18 fracture or subluxation of the knee. (Id.). Plaintiff s respiration was even CT scans confirmed that there was no (AR 297). 19 20 Plaintiff returned January 2, 2008 to the emergency department for 21 an examination of her head wound and knee. 22 discharged 23 complications or complaints. 24 had a routine appointment with Dr. Madhi for her diabetes. 25 Dr. Madhi advised Plaintiff to engage in regular aerobic activity, such 26 as brisk walking, for at least thirty minutes a day, most days of the 27 week. in (Id.). stable condition. (Id.). (AR 332). (AR 331). Plaintiff Plaintiff was had no new On January 7, 2008, Plaintiff (AR 220). Plaintiff met with her primary physician, Dr. Madhi, 28 6 1 again on March 19, 2008. (AR 468). 2 engage in regular aerobic activity. Dr. Madhi advised Plaintiff to (Id.). 3 4 Plaintiff saw orthopedic surgeon, Stephen P. Suzuki, M.D., on March 5 27, 2008, regarding her December 2007 knee injury. (AR 447). Dr. 6 Suzuki diagnosed Plaintiff with traumatic chondromalacia patella, or 7 swelling of the underside of the patella. (Id.). Dr. Suzuki prescribed 8 over-the-counter, non-steroidal anti-inflammatory medications, a home 9 exercise program with ice, and physical therapy. (Id.). 10 11 On April 21, 2008, Plaintiff saw Dr. Madhi for diabetes. (AR 470). 12 Plaintiff was described as well appearing and in no distress. (Id.). 13 Dr. Madhi advised Plaintiff to engage in regular brisk aerobic physical 14 activity and requested a follow up in one month for a blood pressure 15 check. (AR 471). Plaintiff saw Dr. Madhi for hypertension on June 9, 16 2008. (AR 472). Again, Plaintiff was well appearing and in no 17 distress. 18 for a half an hour or more most days of the week and encouraged 19 Plaintiff to adjust her diet. (Id.). Dr. Madhi emphasized the importance of exercising (AR 472-73). 20 21 On September 19, 2008, Plaintiff saw Dr. Madhi for spontaneous 22 vertigo. (AR 474). Dr. Madhi told Plaintiff the illness was not 23 serious, but also that she should avoid working at heights. 24 Additional notes from Plaintiff s visit with Dr. Madhi show that 25 Plaintiff [had not] been checking [her blood] sugars much . (Id.). (Id.). 26 27 Nearly three months later, on January 13, 2008, Plaintiff had an 28 appointment for hypertension with Dr. Madhi. (AR 476). Dr. Madhi noted 7 1 that Plaintiff did not take her medications that day. (Id.). Dr. Madhi 2 again stressed 3 Plaintiff to adjust her caloric intake. the importance of regular exercise and encouraged (AR 477). 4 5 B. State Agency Physicians 6 7 On March 28, 2008, state agency physician Salvatorre Stella, M.D., 8 assessed Plaintiff s residual functional capacity ( RFC ). 9 Dr. Stella concluded that Plaintiff had a light RFC. (AR 456). (AR 458). Dr. 10 Stella determined that Plaintiff could lift twenty pounds occasionally 11 and ten pounds frequently. 12 that Plaintiff could stand or walk with normal breaks for six hours in 13 an eight hour workday and sit for a total of about six hours in an eight 14 hour workday. 15 occasionally climb ramps or stairs and balance, stoop, kneel, crouch, 16 crawl, but never climb scaffolds or ropes. 17 Stella determined that Plaintiff should avoid pulmonary irritants and 18 heavy moving machinery. 19 medical evidence did not support Plaintiff s use of a walker. (AR 458). (Id.). (AR 453). Dr. Stella further determined Dr. Stella also found that Plaintiff could (AR 455). (AR 454). Furthermore, Dr. Finally, Dr. Stella found that the 20 21 On July 2, 2008, state agency physician R. Jacobs, M.D., reviewed 22 Dr. Stella s assessment of Plaintiff s RFC on reconsideration. 23 460). 24 evidencing her chondromalacia patella. 25 the new evidence did not change Plaintiff s RFC. 26 Dr. Jacobs affirmed Dr. Stella s original assessment. Plaintiff presented Dr. Jacobs 27 28 8 with (Id.). new medical (AR records Dr. Jacobs found that (Id.). Accordingly, (Id.). 1 C. Plaintiff s Testimony 2 3 In Plaintiff s disability report, Plaintiff listed sleep apnea, 4 diabetes, asthma, high blood pressure, and obesity as conditions that 5 limited her ability to work. 6 Asthma Questionnaire from June 2008, Plaintiff claimed to have asthma 7 attacks twice a month. 8 stated that it had been one year since she last went to the emergency 9 room because of an asthma attack. (AR 134). (AR 501). Furthermore, in Plaintiff s In the Questionnaire, Plaintiff also (Id.). 10 11 In an Exertional Questionnaire from June 2008, Plaintiff stated 12 that her typical day included washing dishes and helping with the 13 laundry. 14 mile in ten to fifteen minutes, but would be short of breath, and that 15 she could lift a plastic chair and carry two gallons of milk. 16 63). (AR 162). Plaintiff also wrote that she could walk a quarter (AR 162- 17 18 At Plaintiff s hearing on January 6, 2012, in front of ALJ Duane 19 D. Young, Plaintiff testified that she began using a nebulizer in 2003 20 and that she used it three to six times a day. (AR 569-70). Plaintiff 21 acknowledged using the nebulizer consistently since 2003. (AR 574, 22 576). 23 asthma because she had lost over one hundred and twenty-five pounds over 24 the past two and a half years. 25 counsel recognized that prior to 2007 Plaintiff had been using an 26 inhaler. Plaintiff further explained that she was able to control her (AR 573-74). 27 28 9 Additionally, Plaintiff s 1 D. New Evidence 2 3 Plaintiff submitted new evidence, not evaluated by either ALJ, to 4 this Court. The new evidence consists of medical records from April 5 2009 through April 2011. 6 April 28, 2009, Plaintiff received treatment for an upper respiratory 7 infection at Parkview Community Hospital. (Pl s Ex. A at 4). Plaintiff 8 was diagnosed with acute bronchitis. 9 Plaintiff visited the doctor on account of heavy bleeding and was (Plaintiff s Exhibit A ( Pl s Ex. A ). On (Id.). On August 28, 2009, 10 assessed with menorrhagia. (Pl s Ex. A at 6). On October 29, 2009, 11 Plaintiff saw Dr. Madhi to receive the flu vaccine and lab results. 12 (Pl s Ex. A at 8). 13 and weighed three hundred and sixty-five pounds. At this time, Plaintiff had lost thirty five pounds (Id.). 14 15 In 2010, Plaintiff made five visits to Parkview Community Hospital. 16 On April 26, 2010, Plaintiff reported to the hospital for upper 17 abdominal pain. 18 Plaintiff s weight was down to three hundred and thirty-one pounds. 19 (Id.). On July 2, 2010, Plaintiff went to see Dr. Madhi for pain in her 20 tailbone. 21 tailbone on July 15, 2010. 22 Plaintiff reported to Parkview Community Hospital for upper right 23 quadrant pain and a rash on both hands. 24 Mai, M.D. suggested it was gastroenteritis. 25 of 2010, November 29, Plaintiff reported to Parkview Community Hospital 26 with left ear pain. 27 Cortisporin, an antibiotic, for her ear. 28 hundred and ninety-one pounds. (Pl s Ex. A at 9). (Pl s Ex. A at 12). The CT scan was negative. (Id.). Plaintiff saw Dr. Madhi again for her (Pl s Ex. A at 14). (Pl s Ex. A at 16). (Pl s Ex. A at 18). (Id.). 10 On October 10, 2010, (Id.). Vicky N. On her last visit Plaintiff was prescribed (Id.). Plaintiff weighed two 1 The newly submitted records also show three visits to Parkview 2 Community Hospital in 2011. On February 3, 2011, Plaintiff met with Dr. 3 Madhi for high blood pressure. 4 complained of diarrhea, caused by gastroenteritis, for three days. 5 (Id.). 6 forty-five minutes most days of the week. (Id.). On February 10, 2011, 7 Plaintiff was diagnosed with acute sinusitis. 8 Plaintiff s weight was two hundred and eighty-seven pounds. (Id.). The 9 last medical record is from April 14, 2011. (Pl s Ex. A at 20). Plaintiff also Dr. Madhi stressed the importance of exercising for thirty to (Pl s Ex. A at 22). (Pl s Ex. A at 24). 10 Plaintiff was diagnosed with another upper respiratory infection, acute 11 bronchitis. 12 was two hundred and eighty-three pounds. (Id.). Plaintiff s final weight reflected in the record (Id.). 13 14 IV. 15 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 16 17 To qualify for disability benefits, a claimant must demonstrate a 18 medically determinable physical or mental impairment that prevents him 19 from engaging in substantial gainful activity2 and that is expected to 20 result in death or to last for a continuous period of at least twelve 21 months. 22 42 U.S.C. § 423(d)(1)(A)). 23 incapable of performing the work he previously performed and incapable 24 of performing any other substantial gainful employment that exists in Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 25 26 27 28 2 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 11 1 the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 2 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 3 4 To decide if a claimant is entitled to benefits, an ALJ conducts 5 a five-step inquiry. 6 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 7 8 (1) 9 Is the claimant presently engaged in substantial gainful activity? 10 If so, the claimant is found not disabled. If not, proceed to step two. 11 12 (2) Is the claimant s impairment 13 claimant is found not disabled. 14 severe? If not, the If so, proceed to step three. 15 16 (3) Does the claimant s impairment meet or equal one of a 17 list of specific impairments described in 20 C.F.R. Part 18 404, Subpart P, Appendix 1? 19 found disabled. If so, the claimant is If not, proceed to step four. 20 21 (4) Is the claimant capable of performing her past work? 22 so, the claimant is found not disabled. 23 If If not, proceed to step five. 24 25 (5) Is the claimant able to do any other work? 26 claimant is found disabled. 27 found not disabled. 28 12 If not, the If so, the claimant is 1 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(a)(4)(i)- 2 (v), 416.920(a)(4)(i)-(v); Bustamante v. Massanari, 262 F.3d 949, 953-54 3 (9th Cir. 2001) (citations omitted). 4 5 The claimant has the burden of proof at steps one through four, and 6 the Commissioner has the burden of proof at step five. 7 F.3d at 953-54. 8 establishing an inability to perform past work, the Commissioner must 9 show that the claimant can perform some other work that exists in 10 significant numbers in the national economy, taking into account the 11 claimant s RFC, age, education, and work experience. 12 at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(a)(4)(v), 13 416.920(a)(4)(v). 14 or by reference to the Medical-Vocational Guidelines appearing in 20 15 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 16 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 17 claimant 18 limitations, the Grids are inapplicable and the ALJ must take the 19 testimony of a VE. has Bustamante, 262 If, at step four, the claimant meets his burden of both Tackett, 180 F.3d The Commissioner may do so by the testimony of a VE exertional (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 20 21 V. 22 THE ALJ S DECISION 23 24 On March 22, 2012, ALJ Duane D. Young issued a partially favorable 25 decision, finding Plaintiff disabled from January 31, 2006 through 26 December 31, 2008. (AR 506). The ALJ employed the five-step sequential 27 evaluation process, (AR 494-95), and concluded that after December 31, 28 2007, Plaintiff was not disabled within the meaning of the Social 13 1 Security Act. 2 Plaintiff had not engaged in substantial gainful activity since the 3 alleged onset of Plaintiff s disability, January 31, 2006. 4 Next, the ALJ found that during the period of Plaintiff s disability, 5 Plaintiff s severe impairments were asthma, obesity, diabetes mellitus, 6 and right knee degenerative changes. 7 found that the severity of Plaintiff s asthma met the criteria of 8 Listing 3.03B of 20 C.F.R. Part 404, subpart P, Appendix 1 from January 9 31, 2006 to December 31, 2008. 10 (AR 506). At the first step, the ALJ observed that (Id.). At step three, the ALJ (AR 497-499). found Plaintiff disabled during that time. (AR 497). Accordingly, the ALJ (AR 499). 11 12 The ALJ next considered whether Plaintiff s disability continued 13 through the date of the decision, March 22, 2012. 14 determine whether Plaintiff s disability continued, the ALJ applied the 15 medical improvement analysis from 20 C.F.R. § 416.994. 16 ALJ first determined that Plaintiff s severe impairments, subsequent to 17 December 31, 2007, were the same as during the time of her disability. 18 (AR 499). Next, the ALJ considered Plaintiff s severe impairments, both 19 singly and in combination, beginning January 1, 2008. 20 ALJ found that Plaintiff s severe impairments did not meet or medically 21 equal the criteria of any medical listing. 22 found that medical improvement had occurred as of January 1, 2008 and 23 that Plaintiff no longer met Listing 3.03B. (Id.). (AR 492). (AR 495). (AR 500). To The The Accordingly the ALJ (Id.). 24 25 Finally, the ALJ found that, beginning January 1, 2008, Plaintiff 26 had the residual functional capacity to perform sedentary work. 27 The ALJ noted that Plaintiff was precluded from climbing ladders, ropes 28 and scaffolds; could only occasionally balance, stoop, kneel, crouch, 14 (Id.). 1 crawl, push and pull with the right lower extremity, and climb ramps and 2 stairs; must avoid concentrated exposure to workplace hazards, even 3 moderate exposure to pulmonary irritants; and must have a sit and stand 4 option. 5 Plaintiff was capable of performing her past relevant work as a 6 telemarketer, receptionist or telephone operator. (AR 504). (Id.). The ALJ then determined that since January 1, 2008, 7 8 VI. 9 STANDARD OF REVIEW 10 11 Under 42 U.S.C. § 405(g), a district court may review the 12 Commissioner s decision to deny benefits. The court may set aside the 13 Commissioner s decision when the ALJ s findings are based on legal error 14 or are not supported by substantial evidence in the record as a whole. 15 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 16 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 17 18 Substantial evidence is more than a scintilla, but less than a 19 preponderance. 20 which a reasonable person might accept as adequate to support a 21 conclusion. (Id.). To determine whether substantial evidence supports 22 a finding, the court must consider the record as a whole, weighing 23 both 24 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 25 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 26 reasonably support either affirming or reversing that conclusion, the 27 court may not substitute its judgment for that of the Commissioner. 28 Reddick, 157 F.3d at 720-21. evidence Reddick, 157 F.3d at 720. that supports and evidence 15 It is relevant evidence that detracts from the If the evidence can 1 VII. 2 DISCUSSION 3 4 Plaintiff contends that the ALJ failed to consider all of the 5 relevant medical evidence. She also maintains that the ALJ improperly 6 disregarded Plaintiff s subjective testimony. Finally, Plaintiff argues 7 that the ALJ failed to properly consider the relevant vocational 8 evidence. 9 that the ALJ's decision should be affirmed. The Court disagrees with Plaintiff's contentions and finds 10 11 A. The ALJ Properly Considered The Relevant Medical Evidence 12 13 Plaintiff argues that the ALJ arbitrarily determined without any 14 supporting medical documentation that Plaintiff s asthmatic condition 15 improved on January 1, 2008. 16 Complaint Pl s MSC at 4). 17 medical records, not seen by the ALJ, are material and should be 18 considered. 19 medical record, which is consistent with a finding of Plaintiff s 20 improvement by January 1, 2008. 21 the new evidence is not required as the new evidence is not material. (Plaintiff s Memorandum in Support of Plaintiff further maintains that the new (Pl s MSC at 5). However, the ALJ properly considered the Moreover, remand for consideration of 22 23 Social Security regulations require the ALJ to consider all the 24 relevant medical evidence when determining whether 25 disabled. 26 of medical evidence is medical reports from licensed medical physicians. 27 20 C.F.R. § 1513(a),(b). When considering medical reports, the ALJ must 28 give the greatest weight to the opinion of the claimant s treating 20 C.F.R. §§ 404.1520(b), 416.927(c). 16 a claimant is One acceptable source 1 physicians. Turner v. Comm r of Soc. Sec. Admin., 613 F.3d 1217, 1222 2 (9th Cir. 2010). 3 opinion, the ALJ must give specific reasons for doing so. 4 Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011). 5 Further, while the ALJ is required to develop and interpret the medical 6 record, the ALJ is not required to discuss every piece of evidence. 7 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). If an ALJ rejects or ignores a treating physician's Taylor v. 8 9 Here, the ALJ determined that Plaintiff was disabled from January 10 31, 2006 to December 31, 2007. 11 five-step inquiry, a claimant is considered disabled if they meet one 12 of the statutory Listings. 20 C.F.R. §§ 404.1520, 416.920. To meet the 13 criteria of Listing 3.03B, a claimant must suffer from asthma attacks 14 at least once every two months or at least six times a year, despite 15 treatment. 20 C.F.R. Pt. 404, Subpt. P, AP. 1, 3.03B. Hospitalizations 16 of more than 24 hours count as two attacks. 17 record, the ALJ found that Plaintiff had at least six asthma attacks in 18 2006 and at least six asthma attacks in 2007. (AR 498). Therefore, the 19 ALJ properly found that Plaintiff met the requirements of 3.03B. 20 However, 21 Plaintiff s hospitalization for asthma exacerbations ceased. the medical record (AR 497-499). shows that Id. after At step three of the After examining December 31, the 2007, 22 23 After December 31, 2007, Plaintiff saw her physicians for regular 24 diabetes and hypertension follow-ups, a head wound, a knee injury, and 25 a case of benign vertigo. 26 not, however, hospitalized for asthma, nor did she receive any emergency 27 treatment for asthma. 28 receive any emergency treatment for asthma after January 1, 2008, she (AR 220, 331, 468, 470-77). Plaintiff was Plaintiff argues that although she did not 17 1 did receive significant treatment in the form of an in-home nebulizer. 2 (Pl s MSC at 4). 3 Plaintiff s in-home nebulizer use effectively controlled her asthma. 4 Warre v. Comm r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 5 ( Impairments that can be controlled effectively with medication are not 6 disabling 7 benefits. ). 8 asthma condition in the improvement analysis. 9 Plaintiff for However, the lack of hospitalization shows that the purpose of determining eligibility for SSI Furthermore, the ALJ considered Plaintiff s continued could perform only sedentary The ALJ found that work and placed specific 10 limitations on her exposure to pulmonary irritants. 11 absence of asthma complications in the record, such as emergency room 12 visits, 13 indication 14 substantial evidence in the record supports the ALJ s finding of medical 15 improvement. and hospitalizations of Plaintiff s after December significant 31, (AR 500). 2007 improvement. is a The clear Accordingly, 16 17 Plaintiff contends that the new medical records support her 18 disability claim and should be included in the administrative record. 19 (Pl s MSC at 5). 20 for reconsideration under 42 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), 21 remand for new evidence is warranted only if the new evidence is 22 material. 23 substantially on the matter in dispute and if there is a reasonable 24 possibility that the new evidence would have changed the outcome of the 25 determination. 26 (holding that when a claimant is awarded benefits on a second benefits 27 application one day after the denial of benefits on a first application, 28 remand is appropriate to determine whether medical evidence presented New New evidence may be included in the record by remand evidence is material if it bears directly and Luna v. Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010) 18 1 in the second application would affect the outcome of the first). Here, 2 Plaintiff s new evidence is not material, and, if anything, adds further 3 support to the ALJ s conclusion. 4 5 The new evidence consists of medical records from April 2009 to 6 April 2011. (Pl s Ex. A). The new medical records fail to mention 7 asthma attacks, home nebulizer use, or breathing problems, except those 8 related to bronchitis and sinusitis. 9 well appearing and in no distress and her lungs are generally The records show Plaintiff to be 10 described as clear. (Pl s Ex. A at 4, 7, 8, 16, 18, 20, 22, 24). 11 Additionally, Plaintiff s doctor visits during that time were all 12 unrelated to asthma. Instead, Plaintiff saw her physicians for tailbone 13 pain, menstrual problems, ear pain and abdominal pain. 14 4, 6, 8, 12, 14, 18, 22, 24). 15 Plaintiff s weight dropped from four hundred and twenty-three pounds to 16 two hundred and eighty-three pounds. 17 the new medical records show Plaintiff to be in substantially better 18 health than she was in the earlier records presented to the ALJ. 19 Accordingly there would be no change in the outcome even if the ALJ 20 considered the new evidence and remand for consideration of the new 21 evidence is not required. (Pl s Ex. A at Furthermore, the records show that (Pl s Ex. A at 24). In general, 22 23 24 B. The ALJ Provided Clear And Convincing Reasons For Rejecting Plaintiff s Subjective Testimony 25 26 Plaintiff contends that the ALJ did not provide clear and 27 convincing reasons for rejecting Plaintiff s testimony regarding her 28 respiratory issues. In particular, Plaintiff maintains that the ALJ 19 1 improperly assessed Plaintiff s credibility regarding her use of the in- 2 home nebulizer. The Court disagrees. 3 4 When assessing the credibility of a claimant, the ALJ must engage 5 in a two-step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 6 2012). 7 impairment that could reasonably produce the symptoms alleged. 8 Then, if there is, in order to reject the testimony, the ALJ must make 9 specific credibility findings. First the ALJ must determine if there is medical evidence of an the ALJ may use (Id.). ordinary (Id.). In assessing the claimants 10 testimony, techniques of credibility 11 evaluation. 12 The ALJ may also consider any inconsistencies in the claimants conduct 13 and any inadequately or unexplained failure to pursue treatment or 14 follow treatment. 15 2008). 16 where his normal activities can transfer to the work setting. 17 v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Turner, 613 F.3d at 1224 (internal quotations omitted). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. Additionally, the ALJ may discredit the claimant s testimony Morgan 18 19 Here, the ALJ applied the (AR 502). two-step analysis to Plaintiff s 20 subjective testimony. At the first step, the ALJ found that 21 Plaintiff s impairments could reasonably lead to the alleged symptoms. 22 (Id.). 23 to the intensity, severity, and limiting effects of her symptoms after 24 January 1, 2008. 25 convincing reasons for rejecting Plaintiff s testimony. However, the ALJ rejected Plaintiff s subjective testimony as (Id.). As required, the ALJ provided clear and 26 27 28 First, the ALJ found that the evidence submitted [did] not support the severity of symptoms alleged. 20 (AR 501). Plaintiff alleged that 1 she was incapable of sustaining full-time employment because of her 2 asthma and nebulizer use, yet the medical record after January 1, 2008 3 shows minimal to no asthma complications. 4 Plaintiff failed to follow treatment recommendations, noting that 5 Plaintiff failed to take her medication on January 13, 2007. 6 Additionally, 7 treatment[,] surgical intervention or even a referral to a specialist 8 suggest [Plaintiff s] symptoms were not as severe as alleged. 9 502). the ALJ noted that the The ALJ also found that lack of more (Id.). aggressive (AR 10 11 The ALJ also relied upon Plaintiff s daily activities to reject her 12 subjective testimony. Plaintiff s daily activities included doing the 13 laundry, helping with dishes, and grocery shopping when necessary. (AR 14 162-3). 15 required physical and mental abilities that are the same as those 16 necessary for obtaining and maintaining employment and are inconsistent 17 with the presence of an incapacitating or debilitating condition. 18 502). 19 Plaintiff s credibility regarding allegations of disabling functional 20 limitations. 21 testimony regarding activities she could perform. 22 Plaintiff alleged shortness of breath and right knee pain, yet she 23 stated in her questionnaire that she could walk a quarter of a mile. 24 (AR 162). The ALJ noted that many of Plaintiff s daily activities (AR Further, the ALJ found that these daily activities undermined (Id.). The ALJ also found inconsistences in Plaintiff s (Id.). For example, 25 26 Finally, at the hearing, the ALJ questioned Plaintiff s credibility 27 in regards to her nebulizer use. The ALJ explicitly advised Plaintiff 28 to retrieve records supporting the frequency of her in-home nebulizer 21 1 use. (AR 502, 592, 594). 2 to the ALJ. 3 submit such pertinent evidence also suggests that Plaintiff s symptoms 4 and limitations were not as severe as alleged. (AR 502). However, no such records were ever submitted The ALJ noted that the failure to obtain and (Id.). 5 6 Rather than simply reject Plaintiffs subjective testimony, the ALJ 7 systematically stated reasons supported by the record for rejecting 8 Plaintiff's alleged degree of limitations. 9 contention that the ALJ improperly disregarded Plaintiff s testimony, 10 the Court concludes that the ALJ presented clear and convincing reasons 11 for rejecting Plaintiff s subjective testimony. Contrary to Plaintiff s 12 13 C. The ALJ Properly Considered The Relevant Vocational Evidence 14 15 Plaintiff argues that the ALJ failed to properly consider the 16 relevant vocational evidence. Plaintiff contends that the ALJ failed 17 to consider the Vocational Expert s ( VE ) response to the third 18 hypothetical question. 19 from the VE stating that the use of a nebulizer as frequently as 20 Plaintiff alleged would result in her inability to maintain employment. 21 (Pl s MSC at 13). 22 considering the job of receptionist as past relevant work. The third hypothetical included the testimony Plaintiff also maintains that the ALJ erred in 23 24 As an initial matter, the ALJ posed three hypotheticals to the VE. 25 The first hypothetical described an individual exertionally limited to 26 light work activity and various other limitations. 27 second hypothetical, the ALJ asked the VE to consider an individual 28 limited to sedentary activity and with the other limitations described 22 (AR 589). For the 1 above in the ALJ s findings.3 2 described Plaintiff s RFC and limitations, as found by the ALJ. 3 third hypothetical added the limitation that the individual would be 4 required to take a thirty-five minute break, in addition to lunch and 5 normal breaks, to account for the frequency of Plaintiff s alleged 6 nebulizer use. (AR 590). This hypothetical accurately The (AR 591). 7 8 When an ALJ poses a hypothetical derived from the RFC to a 9 vocational expert, the hypothetical must include all the limitations and 10 restrictions of the particular claimant. Valentine v. Comm r of Soc. 11 Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 12 free to accept or reject restrictions in a hypothetical question that 13 are not supported by substantial evidence. 14 F.3d 1157, 1164-65 (9th Cir. 2001). However, [a]n ALJ is Osenbrock v. Apfel, 240 15 16 In making his decision, the ALJ properly relied on only the second 17 hypothetical, which included all of Plaintiff s limitations and 18 restrictions. Plaintiff failed to present medical evidence supporting 19 the frequency of her nebulizer use. 20 any evidence demonstrating that she needed the nebulizer to the same 21 extent as she did previously. Further, as discussed above, the ALJ gave 22 clear and convincing reasons for discrediting Plaintiff s subjective Plaintiff also failed to present 23 24 3 25 26 27 28 The ALJ found Plaintiff was precluded from climbing ladders, ropes and scaffolds; limited to no more than occasional balancing, stopping, kneeling, crouching, crawling, and climbing ramps and stairs; must avoid concentrated exposure to workplace hazards; she must avoid even moderate exposure to pulmonary irritants; she is limited to no more than occasional pushing and pulling with the right lower extremity; and must have a sit stand option. (AR 500). 23 1 testimony regarding her nebulizer use and the severity of her symptoms. 2 Therefore the limitations posed in the ALJ s third hypothetical went 3 beyond 4 Accordingly the ALJ was free to disregard the VE s answer to the third 5 hypothetical. the limitations that the ALJ found Plaintiff to have. 6 7 To support her claim, Plaintiff also argues that previous expert 8 testimony stated that Plaintiff s need for nebulizer use during work 9 hours would preclude her from employment. at the first hearing was (Id.). based on a However, the VE s 10 testimony different set of 11 additional limitations that were no longer present. 12 with (AR 589-90). 13 that he found at the second hearing, which did not include the same 14 degree of nebulizer use,4 and properly included those limitations in the 15 second hypothetical question posed to the VE. 16 not err in disregarding the VE s answer to the third hypothetical 17 question. Compare (AR 37-38) Here, the ALJ in relied only on those limitations Accordingly, the ALJ did 18 19 Similarly, Plaintiff argues that the ALJ failed to discuss how 20 talking allegedly exacerbated Plaintiff s asthma. 21 occupations the ALJ identified as past relevant work included frequent 22 talking, Plaintiff claims that the ALJ erred in failing to properly 23 consider her talking limitation. 24 support of this limitation was Plaintiff s own testimony, 25 made specific credibility findings rejecting Plaintiff s subjective (Id.). Because all of the As the only evidence in and the ALJ 26 27 28 4 As the ALJ noted, he requested documentation to support Plaintiff's allegations regarding nebulizer use, but no documents were submitted. (See AR 502). 24 1 testimony, the ALJ was free to reject those limitations which were not 2 supported by the remainder of the record. 3 required to consider the Plaintiff s subjective testimony regarding 4 asthma exacerbations due to talking, as the record failed to support 5 these limitations. Thus, the ALJ was not 6 7 Finally, Plaintiff contends that the ALJ s conclusion that 8 Plaintiff could perform past relevant work as a receptionist is not 9 supported by substantial evidence. Specifically, Plaintiff maintains 10 that her job as a receptionist never rose to substantial gainful 11 activity. (Pl s MSC at 12). This argument fails on two grounds. 12 13 The record shows that the job of receptionist qualifies as past 14 relevant employment for Plaintiff. Past relevant 15 employment within the past fifteen years that amounted to substantial 16 gainful activity and lasted long enough for the claimant to learn how 17 to do it. 20 C.F.R. 404.1560. Substantial gainful activity is activity 18 that involves significant mental or physical activities and is done for 19 pay or profit. 20 substantial gainful activity is the claimant's earnings. 21 Apfel, 236 F.3d 503, 515 (9th Cir. 2001). Generally earnings over seven 22 hundred dollars a month is evidence that the claimant has 23 substantial gainful activity. 20 C.F.R. § 404.1572(a),(b). employment is One indication of Lewis v. engaged in 20 C.F.R. § 404.1574(b)(2). 24 25 In her disability application, Plaintiff says she worked as a 26 receptionist between 1998 and 2003. 27 receptionist position only lasted a few months, the other, titled 28 receptionist/operator was her longest, best paying job. 25 (AR 130). Although one (AR 135). 1 During that time, Plaintiff earned $13,598.29 in 2000, $11,108.56 in 2 2001 and $12,547.93 in 2002. 3 receptionist over this three-year period average well over the statutory 4 guidelines, indicating that her work as receptionist was substantial 5 gainful activity. 6 Plaintiff s position of receptionist as past relevant work. (AR 709). Plaintiff s earnings as a Therefore, it was proper for the ALJ to consider 7 8 Even if considering the job of receptionist as past relevant work 9 was error, it was harmless error and does not require remand. An ALJ s 10 error is harmless when it is inconsequential to the ultimate 11 nondisability determination. 12 citations and quotations omitted). 13 could Plaintiff perform her past relevant work as a receptionist, but 14 also as a telemarketer and a telephone operator. (AR 504). 15 erred in finding the job of receptionist was past relevant work, he 16 nevertheless found two other jobs within Plaintiff s RFC that Plaintiff 17 could perform and Plaintiff does not contend these two positions did not 18 result in substantial gainful activity. 19 about the receptionist position was error, it was harmless error. Molina, 674 F.3d at 1115 (internal Here, the ALJ found that not only If the ALJ As such, if the conclusion 20 21 In sum, the ALJ properly included all of Plaintiff s limitations 22 in the hypothetical he relied upon. 23 the job of receptionist as past relevant employment, and even if such 24 consideration 25 Plaintiff s final claim that the ALJ failed to consider the relevant 26 vocational evidence fails. was error, it was 27 28 26 The ALJ also properly considered harmless error. Accordingly, 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered AFFIRMING the 6 decision of the Commissioner and dismissing this action with prejudice. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 8 Order and the Judgment on counsel for both parties. 9 10 DATED: July 11, 2013 ________/S/___________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 11 12 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 27
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