Laronda F. McAfee v. Michael J. Astrue, No. 5:2012cv01630 - Document 21 (C.D. Cal. 2013)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Victor B. Kenton. This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. 3 [SEE ORDER FOR FURTHER DETAILS] (gr)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 LARONDA F. McAFEE, 12 13 14 Plaintiff, v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-01630-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issue : 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 2 considered if the Plaintiff meets or equals Listing 1.02A. (Js at 3.) 3 This Memorandum Opinion will constitute the Court s findings of 4 fact and conclusions of law. After reviewing the matter, the Court 5 concludes that the decision of the Commissioner must be affirmed. 6 7 I 8 THE ALJ DID NOT ERR IN CONCLUDING THAT PLAINTIFF DOES NOT MEET OR 9 EQUAL LISTING 1.02, WHICH CONCERNS THE MUSCULOSKELETAL SYSTEM 10 Within that argument, Plaintiff also contends that the ALJ failed 11 to consider the impacts of her acknowledged obesity on her functional 12 abilities. 13 analyze whether she had rebutted the presumption of continuing non- 14 disability as set out in Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988) 15 and Acquiescent Ruling 97.4(9). 16 addressed under this heading. Finally, Plaintiff argues that the ALJ failed to properly Each of these arguments will be 17 Plaintiff filed a prior application for Social Security Income 18 ( SSI ) benefits on November 6, 2000 (AR 42-64), resulting in an 19 unfavorable decision by an ALJ in November 2003, which became final 20 when 21 decision. (AR 14.) 22 increase in the severity of her impairments and the existence of an 23 impairment not previously considered and that she has therefore 24 rebutted the presumption of continuing non-stability required in 25 Chavez. 26 indicated that Plaintiff could perform less than a full range of 27 medium work, while in the present case, the ALJ determined that she in 28 fact has a more restrictive exertional functional ability. Plaintiff failed to appeal the Appeals Council s adverse Plaintiff alleges here that there has been an This argument is easily addressed. 2 The prior Decision 1 In the present case, the ALJ determined that Plaintiff has severe 2 impairments including supermorbid obesity, degenerative disc disease 3 of the lumbrosacral spine, and osteoarthritis of the knees. (AR 12.) 4 After evaluating the medical evidence, the ALJ assessed a residual 5 functional capacity ( RFC ) which allowed Plaintiff to perform light 6 work 7 limitations, including, as pertinent to this case, that Plaintiff 8 should avoid walking on uneven ground ... (AR 13.) (see 20 CFR § 416.967(b)), with additional exertional 9 It is Plaintiff s contention that because the ALJ found that she 10 has this functional limitation, she also, per se, has an inability to 11 ambulate effectively, as defined in Listing 1.02. 12 ALJ did properly evaluate the medical evidence, as the Court will 13 discuss. But, in fact, the 14 Plaintiff was provided an orthopedic consultative examination 15 ( CE ) on November 11, 2009 by the Department of Social Services, by 16 Dr. Simmonds. 17 indicated to him that she currently ambulates unassisted. (AR 462.) 18 He also noted that during the examination she moved freely in and out 19 of the office and about the examination room. (AR 463.) Dr. Simmonds 20 performed a complete orthopedic examination and functionally assessed 21 Plaintiff as being able to effectively perform light work with certain 22 limitations, which included limiting walking on uneven terrain to an 23 occasional basis. (AR 462.) 24 that Plaintiff should not perform any work which requires her to walk 25 on uneven surfaces. Dr. Simmonds took a history from Plaintiff, who The ALJ went even further in determining 26 The ALJ also relied upon the testimony of a Medical Expert 27 ( ME ), who testified that Plaintiff s impairments did not meet or 28 equal a Listing, and indeed, that she had a capacity to perform work 3 1 that was consistent with the ALJ s RFC finding. (AR 13, 15-16, 26-28.) 2 An ALJ may rely upon testimony of an ME as substantial evidence where 3 there is a specific rationale provided to justify the opinion. 4 Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir. 1999). See 5 In his Decision, the ALJ noted that although Plaintiff reported 6 that she uses a cane to ambulate around her home, she got to the 7 hearing room from the parking lot without a cane. (AR 15.) 8 Plaintiff s own testimony at the hearing before the ALJ was that 9 she uses a cane to help her get up, such as getting up from her bed, 10 but that she just use[s] it some days, not every day. (AR 39.) She 11 claimed that she uses a cane to help her walk, but she did not have to 12 use it going from the car to the ALJ s hearing. (Id.) 13 only during the day sometimes, but does not use any other assistive 14 device. (Id.) She uses a cane 15 During her CE with Dr. Simmonds, Plaintiff was, as noted, given 16 an orthopedic examination, and was found to have normal station and 17 gait, in particular, demonstrating normal heel to toe tandem gait and 18 an ability to walk on her heels and her toes respectively. (AR 463.) 19 It is required that Plaintiff demonstrate by evidence that she 20 meets or equals a Listing; however, in this case, Plaintiff only 21 points to the ALJ s determination that she would have a functional 22 limitation of not ambulating on uneven surfaces. 23 this 24 assessment of a functional limitation with a diagnosed condition which 25 meets a Listing. It is Plaintiff s burden to demonstrate that she has 26 the types of symptoms which are required in order to meet or equal a 27 Listing. 28 demonstrated inability to ambulate effectively on a sustained basis argument, primarily, is that Plaintiff The problem with is conflating an In the case of Listing 1.02, it is required that there be a 4 1 for any reason. 2 inability to ambulate effectively, which is generally characterized as 3 an inability to demonstrate sufficient lower extremity functioning to 4 permit independent ambulation without the use of a handheld assistive 5 device. Rxamples are provided of ineffective ambulation which include 6 an inability to walk without the use of walker, two crutches, or two 7 canes. (See Listing 1.02(b)(2).) 8 record to demonstrate that Plaintiff has any such symptoms, and in 9 fact, the evidence is to the contrary. 10 The Listing goes on to define what is meant by There simply is no evidence in this With regard to Plaintiff s contention that the ALJ failed to 11 adequately 12 abilities, the Court finds that the ALJ s Decision reflects that 13 substantial attention was paid to the medical records, with regard to 14 any impact of Plaintiff s obesity on her functioning. (See discussion 15 at AR 15-16.) 16 set out in Celaya v. Halter, 332 F.3d 1177, 1181 n.1. (9th Cir. 2003), 17 the ALJ adequately considered any impact Plaintiff s obesity might 18 have in determining her RFC, and Plaintiff has not provided any 19 evidence to the contrary, as is her burden. (See Social Security 20 Ruling 02-1p.) 21 22 23 assess the impact of her obesity on her functional The Court determines that pursuant to the requirements The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 24 25 26 DATED: August 5, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 27 28 5
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