Hermelinda Galvan v. Carolyn W Colvin, No. 8:2015cv01562 - Document 25 (C.D. Cal. 2016)

Court Description: DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for complete details.) IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner's decision and DISMISSING this action, and it is further ORDERED that The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties. (wr)

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Hermelinda Galvan v. Carolyn W Colvin Doc. 25 1 O 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 Case No. 8:15-CV-01562 (VEB) 7 8 HERMELINDA GALVAN, DECISION AND ORDER Plaintiff, 9 10 vs. 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 Defendant. 13 14 I. INTRODUCTION 15 In October of 2012, Plaintiff Hermelinda Galvan applied for disability 16 insurance benefits under the Social Security Act. The Commissioner of Social 17 Security denied the application. 18 19 20 1 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB Dockets.Justia.com 1 Plaintiff, by and through her attorney, Lawrence D. Rohlfing, Esq., 2 commenced this action seeking judicial review of the Commissioner’s denial of 3 benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 11, 12). On June 1, 2016, this case was referred to the undersigned 6 pursuant to General Order 05-07. (Docket No. 22). 7 II. BACKGROUND 8 9 Plaintiff applied for disability insurance benefits on October 3, 2012, alleging 10 disability beginning August 18, 2011. (T at 108-11).1 The application was denied 11 initially and on reconsideration. 12 Administrative Law Judge (“ALJ”). Plaintiff requested a hearing before an 13 On February 12, 2014, a hearing was held before ALJ Sally C. Reason. (T at 14 38). Plaintiff appeared with her attorney and testified. (T at 42-53). The ALJ also 15 received testimony from Aida Worthington, a vocational expert (T at 53-55). 16 17 On February 28, 2014, the ALJ issued a written decision denying the application for benefits. (T at 17-32). The ALJ’s decision became the 18 19 20 1 Citations to (“T”) refer to the administrative record at Docket No. 16. 2 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 Commissioner’s final decision on August 6, 2015, when the Appeals Council denied 2 Plaintiff’s request for review. (T at 1-6). 3 On September 29, 2015, Plaintiff, acting by and through her counsel, filed this 4 action seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 5 1). The Commissioner interposed an Answer on February 22, 2016. (Docket No. 6 15). Plaintiff filed a supporting memorandum of law on March 21, 2016 (Docket 7 No. 17); the Commissioner filed an opposing memorandum of law on June 20, 2016. 8 (Docket No. 23). 9 After reviewing the pleadings, memoranda of law, and administrative record, 10 this Court finds that the Commissioner’s decision must be affirmed and this case be 11 dismissed. 12 III. DISCUSSION 13 14 A. Sequential Evaluation Process 15 The Social Security Act (“the Act”) defines disability as the “inability to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which has 18 lasted or can be expected to last for a continuous period of not less than twelve 19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 20 3 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 claimant shall be determined to be under a disability only if any impairments are of 2 such severity that he or she is not only unable to do previous work but cannot, 3 considering his or her age, education and work experiences, engage in any other 4 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 5 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 6 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 9 one determines if the person is engaged in substantial gainful activities. If so, 10 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 11 decision maker proceeds to step two, which determines whether the claimant has a 12 medically severe impairment or combination of impairments. 20 C.F.R. §§ 13 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 14 If the claimant does not have a severe impairment or combination of 15 impairments, the disability claim is denied. If the impairment is severe, the 16 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 17 with a number of listed impairments acknowledged by the Commissioner to be so 18 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 19 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 20 4 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 equals one of the listed impairments, the claimant is conclusively presumed to be 2 disabled. If the impairment is not one conclusively presumed to be disabling, the 3 evaluation proceeds to the fourth step, which determines whether the impairment 4 prevents the claimant from performing work which was performed in the past. If the 5 claimant is able to perform previous work, he or she is deemed not disabled. 20 6 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 7 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 8 work, the fifth and final step in the process determines whether he or she is able to 9 perform other work in the national economy in view of his or her residual functional 10 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 11 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 12 The initial burden of proof rests upon the claimant to establish a prima facie 13 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 14 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 15 is met once the claimant establishes that a mental or physical impairment prevents 16 the performance of previous work. The burden then shifts, at step five, to the 17 Commissioner to show that (1) plaintiff can perform other substantial gainful 18 activity and (2) a “significant number of jobs exist in the national economy” that the 19 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 20 5 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 B. Standard of Review 2 Congress has provided a limited scope of judicial review of a Commissioner’s 3 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 4 made through an ALJ, when the determination is not based on legal error and is 5 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 6 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 7 “The [Commissioner’s] determination that a plaintiff is not disabled will be 8 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 9 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 10 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 11 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 12 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 13 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 14 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 15 conclusions as the [Commissioner] may reasonably draw from the evidence” will 16 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 17 the Court considers the record as a whole, not just the evidence supporting the 18 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 19 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 20 6 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 It is the role of the Commissioner, not this Court, to resolve conflicts in 2 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 3 interpretation, the Court may not substitute its judgment for that of the 4 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 5 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 6 set aside if the proper legal standards were not applied in weighing the evidence and 7 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 8 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 9 administrative findings, or if there is conflicting evidence that will support a finding 10 of either disability or non-disability, the finding of the Commissioner is conclusive. 11 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 12 C. Commissioner’s Decision 13 The ALJ determined that Plaintiff had not engaged in substantial gainful 14 activity since August 18, 2011, the alleged onset date, and met the insured status 15 requirements of the Social Security Act through December 31, 2016. (T at 18). The 16 ALJ found that Plaintiff’s neck and back strains/sprains superimposed on 17 degenerative disc disease of the cervical and lumbar spine; degenerative joint disease 18 of the left knee; and obesity were “severe” impairments under the Act. (Tr. 22). 19 20 7 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 However, the ALJ concluded that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled one of the impairments 3 set forth in the Listings. (T at 23). 4 The ALJ determined that Plaintiff retained the residual functional capacity 5 (“RFC”) to perform the full range of medium work as defined in 20 CFR § 416.967 6 (c). (T at 23). 7 The ALJ found that Plaintiff could perform her past relevant work as a 8 hospital cleaner. (T at 28). Accordingly, the ALJ determined that Plaintiff was not 9 disabled within the meaning of the Social Security Act between August 18, 2011 10 (the alleged onset date) and February 28, 2014 (the date of the decision) and was 11 therefore not entitled to benefits. (T at 29). As noted above, the ALJ’s decision 12 became the Commissioner’s final decision when the Appeals Council denied 13 Plaintiff’s request for review. (T at 1-6). 14 D. Disputed Issues 15 Plaintiff offers three (3) main arguments in support of her claim that the 16 Commissioner’s decision should be reversed. First, she contends that the ALJ did 17 not properly address a limitation found in the opinion of a State Agency review 18 physician. Second, Plaintiff argues that the ALJ erred in discounting the opinion of 19 an examining physician. Third, Plaintiff challenges the ALJ’s conclusion that she 20 8 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 can speak, read, and write in English. This Court will address each argument in 2 turn. 3 IV. ANALYSIS 4 5 A. State Agency Review Physician’s Stooping Limitation 6 In March of 2013, Dr. Rita Allbright, a non-examining State Agency review 7 physician, opined that Plaintiff retained the residual functional capacity (“RFC”) to 8 perform medium work with occasional stooping and crouching. (T at 66). The ALJ 9 relied heavily on Dr. Allbright’s assessment in making the RFC determination. (T at 10 27). However, the ALJ determined that Plaintiff retained the RFC to perform a full 11 range of medium work, with no limitation as to stooping or crouching. (T at 23). 12 Plaintiff contends that the ALJ erred by failing to explicitly explain why she 13 did not accept Dr. Allbright’s limitation with regard to stooping. Plaintiff contends 14 that this error was material because her past relevant work as a hospital housekeeper 15 required frequent stooping. 16 It is true that the ALJ did not provide a specific explanation for not accepting 17 this aspect of Dr. Allbright’s opinion. However, the Ninth Circuit has held that an 18 ALJ is not required to use “magic words” and an ALJ’s decision may be sustained 19 where, as here, the court can draw reasonable inferences from the record to find the 20 9 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 decision supported by substantial evidence. See Magallanes v. Brown, 881 F.2d 747, 2 755 (9th Cir. 1989). 3 Here, Dr. Michael S. Wallack performed a consultative examination in March 4 of 2013. Dr. Wallack concluded that Plaintiff had no postural limitations. (T at 177). 5 Dr. Robert Samson performed a consultative orthopedic examination in August of 6 2012. Dr. Samson opined that Plaintiff should avoid lifting objects weighing more 7 than 25 pounds, but otherwise assessed no work-related limitations. (T at 749). He 8 found no “demonstrable evidence of cervical and/or lumbar radiculopathy” on 9 physical examination. (T at 747). Dr. Samson believed that Plaintiff had not exerted 10 full effort during his testing. (T at 746). 11 Neither Dr. Wallack or Dr. Samson assessed any limitation as to stooping. 12 These findings, from examining physicians, provide sufficient support for the 13 ALJ’s decision not to include a stooping limitation in her RFC determination. While 14 it would have been preferable for the ALJ to make this conclusion explicit, the ALJ 15 clearly relied on the opinions of Dr. Wallack and Dr. Samson in formulating the 16 RFC determination and this Court can readily reach the conclusion that these 17 assessments constitute substantial evidence adequate to support the RFC 18 determination. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(holding 19 20 10 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 that if evidence reasonably supports the Commissioner’s decision, the reviewing 2 court must uphold the decision and may not substitute its own judgment). 3 B. Dr. Samson’s Lifting Limitation 4 As noted above, Dr. Robert Samson performed a consultative orthopedic 5 examination in August of 2012. Dr. Samson opined that Plaintiff should avoid 6 lifting objects weighing more than 25 pounds, but otherwise assessed no work- 7 related limitations. (T at 749). Although the ALJ relied on Dr. Samson’s assessment 8 when formulating the RFC determination, she did not accept the 25 pound lifting 9 restriction. (T at 27). Plaintiff challenges this aspect of the ALJ’s decision. 10 This Court finds no error. As the ALJ noted, Dr. Samson did not provide any 11 explanation or cite any clinical findings in support of the lifting limitation. The ALJ 12 is not obliged to accept a medical opinion that is “brief, conclusory and inadequately 13 supported by clinical findings.” Lingenfelter v. Astrue, 504 F.3d 1028, 1044-45 (9th 14 Cir. 2007) (citing Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)). 15 Moreover, Dr. Wallack performed a more recent consultative examination (in 16 March of 2013) and concluded that Plaintiff had no postural limitations. (T at 177). 17 Dr. Allbright, the State Agency review physician, opined that Plaintiff retained the 18 RFC to perform medium work with occasional lifting of 50 pounds and frequent 19 lifting of 25 pounds. (T at 64). The ALJ reasonably noted Dr. Allbright’s expertise 20 11 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 with regard to the applicable Social Security disability standards. See 20 CFR § 2 404.1527 (f)(2)(i)(“State agency medical and psychological consultants and other 3 program physicians, psychologists, and other medical specialists are highly qualified 4 physicians, psychologists, and other medical specialists who are also experts in 5 Social Security disability evaluation.”). 6 Lastly, it should be noted that Dr. Samson did not find Plaintiff precluded 7 from lifting objects weighing more than 25 pounds, but rendered the more equivocal 8 suggestion that Plaintiff “should avoid” lifting such objects. (T at 749). 9 Under the circumstances, this Court finds no error in the ALJ’s assessment of 10 the various medical opinions and substantial evidence supports the ALJ’s conclusion 11 that Plaintiff could perform lifting tasks consistent with the demands of medium 12 work. 13 C. Plaintiff’s Ability to Communicate in English 14 Although Plaintiff testified at the administrative hearing with the assistance of 15 an interpreter, the ALJ reviewed the record and concluded that Plaintiff could read, 16 write, speak, and understand English. (T at 28). Plaintiff concedes that, if this 17 conclusion is correct, the errors alleged above would be harmless. (Docket No. 17, at 18 p. 13). In other words, even if Plaintiff is limited to lifting 25 pounds and only 19 occasionally stooping, a finding of non-disability would be directed under Rule 20 12 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 202.09 of the Medical-Vocational Rules (commonly known as the “Grid” or 2 “Grids”), provided she is “at least literate and able to communicate in English.” 3 There is substantial evidence in the record sufficient to support the conclusion 4 that Plaintiff is at least literate and able to communicate in English. The ALJ noted 5 that Plaintiff became a naturalized U.S. citizen in 2000. (T at 28, 42). 6 naturalization process requires the applicant to demonstrate some understanding of 7 the English language, “including an ability to read, write, and speak words in 8 ordinary usage in the English language.” 8 U.S.C. 1423 (a)(1). Moreover, in a 9 Disability Report completed in October of 2012, Plaintiff reported that she could 10 speak, read, and understand English. (T at 124). In January of 2013, Plaintiff 11 completed a detailed work history report, which contained detailed questions in 12 English, and responded, apparently in her own handwriting, with detailed answers in 13 English. (T at 131-38). Plaintiff worked as a housekeeper in a hospital for 15 years, 14 which indicates that she had a sufficient grasp of English to maintain employment 15 for an extended period. (T at 126). During the administrative hearing, the ALJ 16 observed that Plaintiff appeared to understand the questions before they were 17 translated; Plaintiff responded “a little bit.” (T at 44-45). 18 19 20 13 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB The 1 For the reasons set forth above, this Court finds that substantial evidence 2 supports the ALJ’s findings with regard to Plaintiff’s ability to communicate in 3 English. 4 In the alternative, even if the ALJ’s conclusion regarding Plaintiff’s ability to 5 communicate in English was arguably in error, that error would be harmless for two 6 reasons. First, as outlined above, the ALJ’s conclusion that Plaintiff could perform 7 the full range of medium work was supported by substantial evidence. Grid Rule 8 203.18 directs a finding of non-disability, without regard to the claimant’s ability to 9 communicate in English, for a claimant able to perform the full range of medium 10 work. 11 Second, because the ALJ found at step four of the evaluation process that 12 Plaintiff could perform her past relevant work as it was actually performed, 13 Plaintiff’s ability to communicate in English was arguably irrelevant. 14 This Court is mindful of case law noting that it is an open question as to 15 whether an ALJ is required to consider literacy at step four of the sequential 16 evaluation. See Pinto v. Massanari, 249 F.3d 840, 846 n. 5 (9th Cir. 2001); see also 17 20 C.F.R. 404.1564(b)(5) and 416.964(b)(5) (“Since the ability to speak, read and 18 understand English is generally learned or increased at school we may consider this 19 an educational factor”) (emphasis added). 20 14 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 In sum, the step four analysis includes an assessment as to whether, in the first 2 instance, the claimant can perform his or her past relevant work as the claimant 3 actually performed it. Under the Regulations, questions of age and education are not 4 part of this analysis. See 204 CFR § 404.1560 (b)(3). Here, because Plaintiff was 5 able to perform her past relevant work as a hospital cleaner for 15 years, it would 6 therefore follow that, whatever her arguable limitations might be with respect to the 7 English language, those limitations did not prevent her from maintaining that 8 employment for an extended period of time. This Court does not need to resolve this 9 question, as there is substantial evidence to support the ALJ’s finding with regard to 10 Plaintiff’s ability to communicate in English. However, it is noted that the ALJ’s 11 decision could arguably be affirmed for the reasons stated above even if the 12 Plaintiff’s ability to communicate in English is more limited that the ALJ believed. 13 14 V. CONCLUSION 15 After carefully reviewing the administrative record, this Court finds 16 substantial evidence supports the Commissioner’s decision, including the objective 17 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 18 examined the record, afforded appropriate weight to the medical evidence, including 19 the assessments of the treating and examining medical providers and medical 20 15 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB 1 experts, and afforded the subjective claims of symptoms and limitations an 2 appropriate weight when rendering a decision that Plaintiff is not disabled. This 3 Court finds no reversible error and because substantial evidence supports the 4 Commissioner’s decision, the Commissioner is GRANTED summary judgment and 5 that Plaintiff’s motion for judgment summary judgment is DENIED. 6 VI. ORDERS 7 8 9 10 11 12 13 14 15 IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner’s decision and DISMISSING this action, and it is further ORDERED that The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties. DATED this 23rd day of August, 2016 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 16 DECISION AND ORDER – GALVAN v COLVIN 8:15-CV-01562-VEB

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