Jennifer Roberson v. Michael J Astrue, No. 8:2009cv01243 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Jennifer Roberson (Roberson) filed a Complaint on November 4, 2009. Pursuant to 28 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate Judge Ros enberg on December 1 and 23, 2009. (Dkt. Nos. 8, 10.) On July 13, 2010, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)
Download PDF
<![CDATA[
Jennifer Roberson v. Michael J Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JENNIFER ROBERSON Plaintiff, 12 v. 13 14 MICHAEL J. ASTRUE, Commissioner of Social Security 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) No. SACV 09-1243 AGR MEMORANDUM OPINION AND ORDER 17 Plaintiff Jennifer Roberson ( Roberson ) filed a Complaint on November 4, 2009. 18 Pursuant to 28 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate 19 Judge Rosenberg on December 1 and 23, 2009. (Dkt. Nos. 8, 10.) On July 13, 2010, 20 the parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. The Court 21 has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 22 23 Commissioner. 24 /// 25 /// 26 /// 27 /// 28 /// Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On February 27, 2007, Roberson filed an application for supplemental security 4 income based on disability. Administrative Record ( AR ) 9.1 She alleged a disability 5 onset date of April 30, 2005. Id. The application was denied initially and on 6 reconsideration. Id. Roberson requested a hearing before an Administrative Law 7 Judge ( ALJ ). AR 78. On October 30, 2008, an ALJ conducted a hearing at which 8 Roberson, a medical expert, and a vocational expert ( VE ) testified. AR 29-57. On 9 May 11, 2009, the ALJ issued a decision denying benefits. AR 9-16. On June 3, 2009, 10 Roberson requested that the Appeals Council review the decision denying benefits. AR 11 5. On September 11, 2009, the Appeals Council denied the request for review. AR 1-3. 12 This action followed. 13 II. 14 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 15 16 to deny benefits. The decision will be disturbed only if it is not supported by substantial 17 evidence, or if it is based upon the application of improper legal standards. Moncada v. 18 Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th 19 Cir. 1992). In this context, substantial evidence means more than a mere scintilla but less 20 21 than a preponderance it is such relevant evidence that a reasonable mind might 22 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 23 determining whether substantial evidence exists to support the Commissioner s 24 decision, the Court examines the administrative record as a whole, considering adverse 25 as well as supporting evidence. Drouin, 966 F.2d at 1257. Where the evidence is 26 27 28 1 Roberson previously filed an application for supplemental security income payments on March 27, 2006. AR 9. The application was denied and Roberson did not request reconsideration. Id. 2 1 susceptible to more than one rational interpretation, the Court must defer to the decision 2 of the Commissioner. Moncada, 60 F.3d at 523. 3 III. 4 DISCUSSION 5 A. Disability 6 A person qualifies as disabled and is eligible for benefits, "only if his physical or 7 mental impairment or impairments are of such severity that he is not only unable to do 8 his previous work but cannot, considering his age, education, and work experience, 9 engage in any other kind of substantial gainful work which exists in the national 10 economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 11 (2003). 12 B. The ALJ s Findings 13 The ALJ found that Roberson has the following severe impairments: back injury 14 with bulging disc and headaches. AR 11. She has the residual functional capacity 15 ( RFC ) to lift and carry twenty pounds occasionally and ten pounds frequently. AR 13. 16 She can stand and/or walk for six hours out of an eight-hour workday [and] sit for six 17 hours out of an eight-hour workday. Pushing and/or pulling are unlimited other than lift 18 and carry. [She] is limited to occasional postural limitations except for frequent climbing 19 of stairs and never crawling. Environmentally, [she] needs to avoid concentrated 20 exposure to extreme cold, avoid moderate exposure to vibration and void [sic] all 21 exposure to unprotected heights and moving machinery. Id. The ALJ found that 22 Roberson is capable of performing past relevant work as a cashier as actually and 23 generally performed. AR 15. 24 C. Examining Physician 25 Roberson contends the ALJ improperly rejected the opinion of an examining 26 physician in Orthopaedic Surgery. Roberson argues that the examining physician s 27 opinion indicates she meets or equals Listing 1.04A. 28 3 The examining physician saw Roberson on May 7, 2007. AR 543. She had 1 2 markedly restricted range of motion of the lumbar spine, and pain with extremes of 3 movement. Straight leg raising was positive. She had normal reflexes, motor function 4 and sensation. Id. The examining physician s opinion does not constitute substantial evidence that 5 2 6 Roberson meets or equals Listing 1.04A. The opinion does not indicate motor loss 7 (atrophy with associated muscle weakness or muscle weakness) accompanied by 8 sensory or reflex loss, as required by the listing. Contrary to Roberson s argument, the 9 ALJ did not misrepresent the evidence by stating no examining physician reported 10 findings which meet or equal a listing. AR 13. Any error was harmless. Stout v. 11 Comm r of the Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also McLeod 12 v. Astrue, 2011 U.S. App. LEXIS 2346, *11-*14 (9th Cir. Feb. 4, 2011) (party challenging 13 agency determination has burden to show prejudice resulted from alleged error). 14 D. Equivalency to Listing 1.04A 15 At step three, the claimant bears the burden of demonstrating that her 16 impairments are equivalent to a listed impairment that the Commissioner acknowledges 17 are so severe as to preclude substantial gainful activity. Bowen v. Yuckert, 482 U.S. 18 137, 141, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). If the impairment meets or 19 equals one of the listed impairments, the claimant is conclusively presumed to be 20 disabled. If the impairment is not one that is conclusively presumed to be disabling, the 21 evaluation proceeds to the fourth step. Id. at 141; Tackett v. Apfel, 180 F.3d 1094, 22 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 23 24 25 26 27 28 2 Listing 1.04A, Disorders of the Spine, requires [e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine). 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A. 4 1 The listings define impairments that would prevent an adult, regardless of his 2 age, education, or work experience, from performing any gainful activity, not just 3 substantial gainful activity. Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 885, 107 4 L. Ed. 2d 967 (1990) (citation omitted, emphasis in original). For a claimant to show 5 that his impairment matches a listing, it must meet all of the specified medical criteria. 6 An impairment that manifests only some of those criteria, no matter how severely, does 7 not qualify. Id. at 530 (emphasis in original). 8 To equal a listed impairment, a claimant must establish symptoms, signs and 9 laboratory findings at least equal in severity and duration to the characteristics of a 10 relevant listed impairment, or, if a claimant s impairment is not listed, then to the listed 11 impairment most like the claimant s impairment. Tackett, 180 F.3d at 1099 (emphases 12 in original); 20 C.F.R. § 404.1526. Medical equivalence must be based on medical 13 findings. A generalized assertion of functional problems is not enough to establish 14 disability at step three. Tackett, 180 F.3d at 1100 (citation omitted). 15 An ALJ must evaluate the relevant evidence before concluding that a claimant s 16 impairments do not meet or equal a listed impairment. A boilerplate finding is insufficient 17 to support a conclusion that a claimant s impairment does not do so. Lewis v. Apfel, 18 236 F.3d 503, 512 (9th Cir. 2001). 19 The ALJ found that [t]he record does not report the existence of any functional 20 limitations and or diagnostic test results, which would suggest that the impairments meet 21 or equal the criteria of any specific listing. AR 13. In addition, the ALJ noted that no 22 treating or examining physician had reported findings that met or equaled a listing, and 23 such findings were not indicated by the medical evidence of record, as affirmed by the 24 medical expert. Id. The ALJ specifically considered Listing 1.04A. Id. 25 /// 26 /// 27 /// 28 /// 5 Roberson argues that she meets or equals Listing 1.04A based on the opinion of 1 2 an examining physician in orthopaedic surgery. Her argument is rejected for the 3 3 reasons discussed above. Substantial evidence supports the ALJ s findings. The ALJ reviewed and weighed 4 5 the medical evidence. AR 11-15. The ALJ cited the opinion of examining physician Dr. 6 Altman, who found MRI evidence of mild degenerative disc disease and concluded 7 Roberson could perform medium work. AR 12. The ALJ also cited objective medical 8 evidence (consisting of x-rays, MRI results and a nerve conduction study) that indicated 9 mild degenerative disc disease, mild spondylosis and mild S1 radiculopathy. AR 12, 10 540, 562, 565. The ALJ found the medical expert s opinion that Roberson did not meet 11 or equal a listing was consistent with the objective medical evidence. AR 11-13. The 12 ALJ did not err. 13 E. Treating Physician 14 Roberson contends that the ALJ failed to provide specific and legitimate reasons 15 for rejecting a temporary disability opinion of treating physician Dr. Schilling. Roberson 16 concedes that the period of temporary disability, February 7, 2003 until April 15, 2003, is 17 somewhat remote in time. JS 17. Nevertheless, Roberson argues that the ALJ s 18 decision might have been different if Dr. Schilling s opinion as to temporary disability had 19 been considered. An opinion of a treating physician is given more weight than the opinion of non- 20 21 treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When a treating 22 physician s opinion is contradicted by another doctor, the ALJ may not reject this 23 opinion without providing specific and legitimate reasons supported by substantial 24 25 26 27 28 3 Roberson relies on Marcia v. Sullivan, 900 F.2d 172 (9th Cir. 1990), to support her contention that the ALJ did not consider equivalence. JS 13. Roberson s reliance on Marcia is misplaced. In Marcia, the claimant presented medical findings and evidence regarding the combination of his impairments in an effort to establish equivalence. Marcia, 900 F.2d at 176. Here, Roberson did not present evidence of medical equivalence. 6 1 evidence in the record. This can be done by setting out a detailed and thorough 2 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 3 and making findings. Id. at 632 (citations and quotations omitted). The ALJ considered that, in a permanent and stationary report, Dr. Schilling 4 5 diagnosed Roberson with lumbar sprain/strain, lumbar discopathy, and lumbar 6 radiculopathy, and limited her to light work as of August 22, 2003. AR 11, 522. Dr. 7 Schilling s opinion is consistent with the ALJ s RFC and there is no indication the ALJ 8 rejected Dr. Schilling s opinion. Roberson s argument that the ALJ should have 9 discussed Dr. Schilling s prior opinion that Roberson was temporarily disabled between 10 February 7, 2003 and April 15, 2003 is not well taken. AR 528. There was no need for 11 the ALJ to address a period of temporary disability that lasted less than 12 months, and 12 occurred prior to the alleged onset date and prior to the same physician s opinion that 13 Roberson was capable of light work as of her permanent and stationary date. See 14 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (ALJ is not 15 required to discuss evidence that is neither significant nor probative). Put another way, 16 the ALJ s disability determination remains valid even assuming Dr. Schilling s prior 4 17 opinion of temporary disability is fully accepted. See McLeod, 2011 U.S. App. LEXIS 18 2346 at *11-*14; Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2005) (harmless 19 error). It is clear on this record that any error was harmless. 20 F. Past Relevant Work 21 Roberson contends that the ALJ erred by failing to discuss the actual physical and 22 mental demands of her past relevant work. At step four of the sequential analysis, the claimant has the burden to prove that 23 24 he cannot perform his prior relevant work either as actually performed or as generally 25 4 26 27 28 Roberson s argument that the previous period of temporary disability lends credence to Dr. Tajik s opinion of disability four years later is not sufficient to establish prejudicial error. Roberson does not challenge the ALJ s reasons for discounting Dr. Tajik s opinion. Moreover, Dr. Schilling opined that Roberson could perform light work after she was permanent and stationary. 7 1 performed in the national economy. Carmickle v. Comm r Soc. Sec. Admin., 533 F.3d 2 1155, 1166 (9th Cir. 2008) (citation omitted). Although the burden of proof lies with the 3 claimant at step four, the ALJ still has a duty to make the requisite factual findings to 4 support his conclusion. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The ALJ 5 must make specific findings as to the claimant s residual functional capacity, the 6 physical and mental demands of the past relevant work, and the relation of the residual 5 7 functional capacity to the past work. Id. at 845; Social Security Ruling 82-62; see also 8 20 C.F.R. §§ 404.1520(e), 416.920(e). The ALJ is not required to make explicit findings 9 as to whether a claimant can perform past relevant work both as generally performed 10 and as actually performed. Pinto, 249 F.3d at 845. The ALJ found that Roberson could return to her past relevant work as a cashier, 11 12 both as actually and generally performed. AR 15. The ALJ stated that he relied upon 13 the VE s testimony that the requirements of the cashier job were consistent with 14 Roberson s RFC. Id. Prior to the VE s testimony, the ALJ questioned Roberson about 15 the requirements of her cashier jobs. AR 52-54. The VE testified that both cashier 16 positions were light, unskilled jobs. AR 55; see DOT 211.462-010; DOT 311.472-010. 17 The VE testified that a person with Roberson s RFC could perform her past relevant 18 work as a retail cashier or a fast food cashier. AR 15, 55. Roberson s descriptions of 19 her prior work (see AR 53-54) and the VE s opinion, which in turn relied on specific job 20 classifications in the DOT, constitute substantial evidence supporting the ALJ s 21 determination. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (claimant s 22 testimony about past relevant work is highly probative ); Pinto, 249 F.3d at 845-46 ( the 23 best source for how a job is generally performed is usually the Dictionary of 24 Occupational Titles ). Roberson does not identify any inconsistency between the ALJ s 25 26 27 28 5 Social Security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 8 1 RFC and her ability to perform her past relevant work as actually performed according to 2 her description or as generally performed according to the DOT job classifications. The 3 ALJ did not err. 4 IV. 5 ORDER 6 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order 8 and the Judgment herein on all parties or their counsel. 9 10 DATED: March 30, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
