Salome Jacob v. Michael J Astrue, No. 2:2007cv06118 - Document 15 (C.D. Cal. 2008)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman: IT IS ORDERED that: (1) plaintiff's request for relief is denied; and (2) the Commissioner's decision is affirmed, and Judgment shall be entered in favor of defendant. (See document for further details.) (pcl)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 SALOME A. JACOB, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) __________________________________) No. CV 07-6118-RC OPINION AND ORDER 17 18 Plaintiff Salome A. Jacob filed a complaint on September 20, 19 2007, seeking review of the Commissioner s decision denying her 20 application for disability benefits. 21 complaint on March 5, 2008, and the parties filed a joint stipulation 22 on April 17, 2008. The Commissioner answered the 23 24 BACKGROUND 25 I 26 On September 29, 2004, plaintiff applied for disability benefits 27 under Title II of the Social Security Act ( Act ), 42 U.S.C. § 423, 28 claiming an inability to work since March 18, 2004, due to heart 1 surgery. Certified Administrative Record ( A.R. ) 43-47, 54. The 2 plaintiff s application was initially denied on January 4, 2005, and 3 was denied again on June 14, 2005, following reconsideration. 4 29-34, 38-40. 5 which was held before Administrative Law Judge Robert A. Evans ( the 6 ALJ ) on October 4, 2006. 7 the ALJ issued a decision finding plaintiff is not disabled. 8 21. 9 which denied review on May 7, 2007. A.R. The plaintiff then requested an administrative hearing, A.R. 41-42, 259-71. On October 25, 2006, A.R. 10- The plaintiff appealed this decision to the Appeals Council, A.R. 5-9. 10 11 II 12 The plaintiff, who was born on February 25, 1954, is currently 54 13 years old. A.R. 43. She had 10 years of schooling in the 14 Phillippines, and has previously worked as a food service worker and a 15 housekeeper. A.R. 50-52, 54-55, 58, 104, 262-64. 16 17 Between May 10, 2003, and October 12, 2004, plaintiff received 18 treatment from Antonio D. Ramos, M.D., who diagnosed her with chest 19 pain and coronary artery disease, among other conditions. 20 75. 21 which was markedly positive for exercise-induced ischemia1 and the 22 development of chest discomfort. 23 plaintiff to Samuel Dacanay, M.D., who examined her on March 26, 2004, 24 diagnosed her with chest pain and coronary artery disease, and A.R. 146- On March 24, 2004, plaintiff underwent a treadmill stress test, A.R. 139-43. Dr. Ramos referred 25 26 27 28 1 Ischemia is a deficiency of blood in a part, usually due to functional constriction or actual obstruction of a blood vessel. Dorland s Illustrated Medical Dictionary, 920 (29th ed. 2000). 2 1 scheduled her for a diagnostic cardiac catheterization. A.R. 197-200. 2 3 On March 31, 2004, Dr. Dacanay performed a cardiac 4 catheterization on plaintiff, which revealed significant left main 5 coronary artery stenosis with as high as an 80-90% proximal blockage, 6 and right coronary artery stenosis in the 80% range. 7 That same day, Carlos E. Moreno-Cabral, M.D., examined plaintiff, 8 diagnosed her with left main coronary artery disease and right 9 coronary artery stenosis, and scheduled her for coronary artery bypass 10 surgery, which took place on April 2, 2004. A.R. 107-10. A.R. 105, 109-10. 11 12 On April 12, 2004, Dr. Dacanay reported plaintiff was doing well 13 postoperatively, but she should not return to work for two months. 14 A.R. 196. 15 left arm and leg numbness and also had left-sided chest discomfort and 16 fatigue. 17 cardiomegaly2 and medial opacity of the left lung base that was either 18 atelectasis3 or scarring. 19 a treadmill stress test, which was negative for exercise-induced 20 ischemia, and during which plaintiff reported no symptoms although 21 postoperative septal hypokinesis4 was noted. On June 7, 2004, plaintiff complained she was experiencing A.R. 195. Chest x-rays taken the same day showed A.R. 201. On June 21, 2004, plaintiff had A.R. 136-38. On 22 23 24 25 26 27 28 2 Cardiomegaly is hypertrophy [the enlargement or overgrowth] of the heart. Dorland s Illustrated Medical Dictionary at 287, 859. 3 Atelectasis is an incomplete expansion of a lung or a portion of a lung; it may be a primary (congenital), secondary, or otherwise acquired condition. Id. at 166. 4 Hypokinesis is abnormally decreased mobility[,] . . . motor function or activity. Dorland s Illustrated Medical 3 1 June 28, 2004, plaintiff was doing better, but complained of left 2 shoulder, back, and left leg discomfort. 3 2005, Dr. Dacanay noted plaintiff was doing well without any 4 complaints except for a persistent cough, and plaintiff was stable 5 from the cardiac standpoint. . . . A.R. 194. On February 5, A.R. 188. 6 7 Postoperatively, plaintiff also received ongoing treatment from 8 Dr. Ramos, who, on April 26, 2004, opined plaintiff s disability was 9 total and permanent. A.R. 153. On May 24, 2004, Dr. Ramos further 10 opined plaintiff has a [m]oderate limitation of functional capacity 11 but is capable of clerical/administrative (sedentary) activity[,] 12 i.e., lifting a maximum of 10 pounds and occasionally lifting and/or 13 carrying articles. A.R. 451. 14 15 On December 3, 2004, Pedro Eva, M.D., examined plaintiff, noted 16 she appeared to have recovered well from her heart surgery, and his 17 examination findings were generally normal. 18 opined plaintiff could perform medium to light . . . functional 19 activities of daily living[,] meaning she can lift approximately 50 20 pounds occasionally and 20 pounds frequently and stand and walk for 21 six hours in an eight-hour day with no other limitations. A.R. 176-79. Dr. Eva Id. 22 23 On June 9, 2005, Antoine Cazin, M.D., examined plaintiff and 24 concluded her coronary artery disease was well-controlled, and 25 plaintiff no longer needed nitroglycerin. 26 plaintiff s complaints of fatigue were understandable since she had 27 28 Dictionary at 864. 4 A.R. 212. Dr. Cazin noted 1 heart surgery 13 months ago[,] ; nevertheless, he was of the opinion 2 that plaintiff was probably moderately limited to do any work-related 3 activity and she could not do any sustained effort. A.R. 208, 212. 4 5 Between September 23, 2005, and September 19, 2006, Alberto V. 6 Natividad, M.D., treated plaintiff. A.R. 239-43, 245-52. On 7 September 24, 2006, Dr. Natividad noted plaintiff was experiencing 8 chest pain and heaviness with exertion and was easily fatigued, and 9 Dr. Natividad was of the opinion that plaintiff s symptoms were severe 10 enough to interfere with her attention and concentration and she had a 11 moderate limitation in her ability to deal with work-related stress. 12 A.R. 239-43. 13 lift and carry less than 10 pounds, but never more than that amount; 14 can sit for at least 6 hours in an 8-hour work day and more than two 15 hours at a time; can stand and/or walk for about 2 hours in an 8-hour 16 work day; can stand for 1 hour at a time; can walk approximately 2 17 blocks without rest; and can bend and twist for approximately 10% of 18 the day. 19 plaintiff would sometimes need to take unscheduled breaks during work 20 and, when sitting, she would need to elevate her legs about 2 feet for 21 approximately 30% of the work day; however, she would miss less than 22 one day of work a month due to her condition. Dr. Natividad further opined plaintiff: can occasionally A.R. 239-43, 245-52. Furthermore, Dr. Natividad opined A.R. 241, 243. 23 24 DISCUSSION 25 III 26 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 27 review the Commissioner s decision denying plaintiff disability 28 benefits to determine if his findings are supported by substantial 5 1 evidence and whether the Commissioner used the proper legal standards 2 in reaching his decision. 3 F.3d 1155, 1159 (9th Cir. 2008); Tommasetti v. Astrue, 533 F.3d 1035, 4 1038 (9th Cir. 2008). Carmickle v. Comm r, Soc. Sec. Admin., 533 5 6 In determining whether the Commissioner s findings are supported 7 by substantial evidence, [this Court] must review the administrative 8 record as a whole, weighing both the evidence that supports and the 9 evidence that detracts from the Commissioner s conclusion. Reddick 10 v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 11 246 F.3d 1195, 1201 (9th Cir. 2001). 12 reasonably support either affirming or reversing the decision, [this 13 Court] may not substitute [its] judgment for that of the 14 Commissioner. 15 cert. denied, 128 S. Ct. 1068 (2008); Lingenfelter v. Astrue, 504 F.3d 16 1028, 1035 (9th Cir. 2007). Where the evidence can Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), 17 18 The claimant is disabled for the purpose of receiving benefits 19 under the Act if she is unable to engage in any substantial gainful 20 activity due to an impairment which has lasted, or is expected to 21 last, for a continuous period of at least twelve months. 22 423(d)(1)(A); 20 C.F.R. § 404.1505(a). 23 of establishing a prima facie case of disability. 24 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 25 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 42 U.S.C. § The claimant bears the burden Roberts v. 26 27 28 The Commissioner has promulgated regulations establishing a fivestep sequential evaluation process for the ALJ to follow in a 6 1 disability case. 20 C.F.R. § 404.1520. In the First Step, the ALJ 2 must determine whether the claimant is currently engaged in 3 substantial gainful activity. 4 the Second Step, the ALJ must determine whether the claimant has a 5 severe impairment or combination of impairments significantly limiting 6 her from performing basic work activities. 7 If so, in the Third Step, the ALJ must determine whether the claimant 8 has an impairment or combination of impairments that meets or equals 9 the requirements of the Listing of Impairments ( Listing ), 20 C.F.R. 20 C.F.R. § 404.1520(b). If not, in 20 C.F.R. § 404.1520(c). 10 § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If not, in the 11 Fourth Step, the ALJ must determine whether the claimant has 12 sufficient residual functional capacity despite the impairment or 13 various limitations to perform her past work. 14 404.1520(f). 15 Commissioner to show the claimant can perform other work that exists 16 in significant numbers in the national economy. 17 404.1520(g). 20 C.F.R. § If not, in Step Five, the burden shifts to the 20 C.F.R. § 18 19 Applying the five-step sequential evaluation process, the ALJ 20 found plaintiff has not engaged in substantial gainful activity since 21 March 18, 2004, the alleged onset date. . . . 22 then found plaintiff has the following severe impairment: status post 23 coronary artery bypass grafting times three (Step Two); however, she 24 does not have an impairment or combination of impairments that meets 25 or equals a Listing. 26 plaintiff can perform her past relevant work as a hotel cleaner; 27 therefore, she is not disabled. (Step Three). 7 The ALJ Finally, the ALJ concluded (Step Four). 28 (Step One). IV 1 2 A claimant s residual functional capacity ( RFC ) is what she can 3 still do despite her physical, mental, nonexertional, and other 4 limitations. 5 Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 6 the ALJ found plaintiff has the RFC to lift and carry 50 pounds 7 occasionally and 20 pounds frequently, stand/walk 6 hours in an 8-hour 8 workday, and sit 6 hours in an 8-hour workday. 9 plaintiff contends this finding is not supported by substantial Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); A.R. 15. Here, However, 10 evidence because the ALJ failed to properly evaluate the opinions of 11 Drs. Natividad and Cazin and erroneously determined she was not a 12 credible witness. 13 14 A. Physicians Opinions: 15 The medical opinions of treating physicians are entitled to 16 special weight because the treating physician is employed to cure and 17 has a greater opportunity to know and observe the patient as an 18 individual. 19 Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001). 20 the ALJ must provide clear and convincing reasons for rejecting the 21 uncontroverted opinion of a treating physician, Ryan v. Comm r of Soc. 22 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Orn v. Astrue, 495 F.3d 23 625, 632 (9th Cir. 2007), and [e]ven if [a] treating doctor s opinion 24 is contradicted by another doctor, the ALJ may not reject this opinion 25 without providing specific and legitimate reasons supported by 26 substantial evidence in the record. 27 Tommasetti, 533 F.3d at 1041. 28 ALJ must provide specific and legitimate reasons supported by Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Therefore, Reddick, 157 F.3d at 725; Similarly, even if controverted, the 8 1 substantial evidence in the record to reject the opinion of an 2 examining physician. 3 F.3d 1063, 1066 (9th Cir. 2006). Ryan, 528 F.3d at 1198; Widmark v. Barnhart, 454 4 5 Dr. Natividad, as set forth above, was of the opinion plaintiff 6 is limited in her ability to perform work-related activities. 7 However, the ALJ rejected Dr. Natividad s opinion because his 8 assessment is not consistent with the treatment and consulting records 9 and objective findings. A.R. 18. An ALJ may properly reject a 10 treating or examining physician s opinion that is inconsistent with 11 the medical record, Batson v. Comm r of the Soc. Sec. Admin., 359 F.3d 12 1190, 1195 (9th Cir. 2004); Morgan v. Comm r of the Soc. Sec. Admin., 13 169 F.3d 595, 602 (9th Cir. 1999), as the ALJ did here. 14 the ALJ found the records show that the claimant made a good recovery 15 after the heart surgery in March 2004, with no objective evidence of 16 any complications or significant residuals. 17 treating cardiologist Dr. Dacanay last examined plaintiff on 18 February 5, 2005, he noted plaintiff was doing well without cardiac 19 complaints and was stable from the cardiac standpoint. . . . 20 188. 21 found plaintiff had recovered well from her heart surgery, and his 22 examination findings were generally normal, and examining physician 23 Dr. Cazin likewise found plaintiff s coronary artery disease was well- 24 controlled, and she did not need nitroglycerin any more. 25 reason for rejecting Dr. Natividad s opinion is supported by 26 substantial evidence in the record. 27 169 F.3d at 602. 28 // A.R. 18. Specifically, In fact, when A.R. Similarly, on December 3, 2004, examining physician Dr. Eva 9 Thus, this Batson, 359 F.3d at 1195; Morgan, An ALJ may also properly reject a treating physician s opinion 1 2 that is clearly inconsistent with his treating notes. Tommasetti, 533 3 F.3d at 1041; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 4 2005). 5 signs listed by Dr. Natividad in support of his assessment do not 6 indicate any significant impairment or limitations and Dr. 7 Natividad s own treatment records show generally normal physical 8 examinations with no significant objective abnormalities. 9 19. Here, the ALJ found [t]he clinical findings and objective A.R. 18- Indeed, as the ALJ noted, [w]hen asked to identify clinical 10 findings and objective signs, Dr. Natividad listed a scar in the chest 11 area, normal sinus rhythm of the heart with no murmurs, good 12 peripheral pulse and blood pressure of 138/80. 13 this reason for rejecting Dr. Natividad s opinion is also supported by 14 substantial evidence in the record. 15 provided specific and legitimate reasons based on substantial 16 evidence for [his] rejection of [Dr. Natividad s] opinion[,] 17 Tommasetti, 533 F.3d at 1037, the Court finds no merit to plaintiff s 18 claim that the ALJ failed to properly consider Dr. Natividad s 19 opinions. A.R. 18, 239. See A.R. 239-52. Thus, Since, the ALJ 20 21 The ALJ did not give any weight to Dr. Cazin s opinion that 22 plaintiff is probably moderately limited to do any work-related 23 activity and she could not do any sustained effort[,] A.R. 212, 24 because it was based solely on the [plaintiff s] complaint of 25 fatigue, without objective support, as the physical examination and 26 neurological examination were within normal limits. 27 finding is based on substantial evidence since the record clearly 28 shows Dr. Cazin s opinion was based solely on plaintiff s complaints 10 A.R. 19. This 1 of fatigue. See, e.g., A.R. 208 ( At present, the patient states that 2 she is always very tired because of her surgery. ), 210 ( She states 3 that she is able to walk for 15 minutes, then she needs to stop 4 because she is tired. 5 minutes. ), 212 ( [S]he states that she is very tired and this is 6 understandable since she had heart surgery 13 months ago. ). 7 physician s opinion of disability is premised to a large extent upon 8 the claimant s own accounts of his symptoms and limitations[,] that 9 opinion may be disregarded where those complaints have been properly For the same reason, she can stand only 15 When a 10 discounted. Morgan, 169 F.3d at 602 (citations omitted); 11 Tommasetti, 533 F.3d at 1041. 12 determination that plaintiff was not credible is supported by 13 substantial evidence in the record; therefore, the ALJ provided a 14 specific and legitimate reason supported by substantial evidence in 15 the record for discounting Dr. Cazin s opinion that plaintiff is 16 disabled. Here, as discussed below, the ALJ s Ibid. 17 18 B. Credibility: 19 The plaintiff testified at the administrative hearing that since 20 the heart surgery on April 2, 2004, she is unable to work because she 21 easily gets tired, experiences numbness on her left side, and 22 sometimes experiences chest pain. 23 has presented objective evidence that she suffers from an impairment 24 that could cause pain or other nonexertional limitations,5 the ALJ may A.R. 264-68, 270. Once a claimant 25 26 27 28 5 While most cases discuss excess pain testimony rather than excess symptom testimony, rules developed to assure proper consideration of excess pain apply equally to other medically related symptoms. Swenson v. Sullivan, 876 F.2d 683, 687-88 (9th Cir. 1989). 11 1 not discredit the claimant s testimony solely because the degree of 2 pain alleged by the claimant is not supported by objective medical 3 evidence. 4 banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). 5 if the ALJ finds the claimant s subjective complaints are not 6 credible, he must provide specific, cogent reasons for the 7 disbelief. 8 (citations omitted); Orn, 495 F.3d at 635. 9 medical evidence establishing an objective basis for some degree of 10 pain and related symptoms, and no evidence affirmatively suggesting 11 the claimant is malingering, the ALJ s reasons for rejecting the 12 claimant's testimony must be clear and convincing. 13 at 599; Carmickle, 533 F.3d at 1160. Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en Rather, Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) Furthermore, if there is Morgan, 169 F.3d 14 15 Here, the ALJ found plaintiff s complaints were not credible 16 because they were not consistent with her activities of daily living 17 -- plaintiff does housework, grocery shops with her husband because 18 she does not drive, sometimes cleans, watches T.V. and reads 19 magazines, does laundry, cooks, sometimes goes to the park and 20 exercises and walks, goes to church and has no difficulty with 21 personal care. 22 evidence in the record, see, e.g., A.R. 63-67, and is inconsistent 23 with the presence of a condition which would preclude all work 24 activity. 25 see also Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) ( [T]he 26 ALJ articulated adequate reasons for partially rejecting [the 27 claimant s] pain testimony[,] including that claimant s daily 28 activities, such as her ability to care for her own personal needs, A.R. 20. This finding is supported by substantial Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990); 12 1 cook, clean and shop[,] which suggests she is quite functional. ); 2 Thomas, 278 F.3d at 959 (claimant s daily activities, including 3 cooking, laundry, washing dishes, and shopping, supported a negative 4 credibility finding); Tidwell v. Apfel, 161 F.3d 599, 601-02 (9th Cir. 5 1998) (ALJ properly rejected claimant s subjective pain complaints 6 based, in part, on claimant s testimony that she did laundry, cleaned 7 house, vacuumed, mopped, dusted and shopped for groceries). 8 9 The ALJ also found plaintiff s complaints are out of proportion 10 to the objective evidence, and are not consistent with her 11 treatment. 12 test with myocardial scan on June 21, 2004[,] which was normal with 13 no evidence of reversible ischemia[,] A.R. 20, 136-38, as well as Dr. 14 Cazin s conclusion that plaintiff s coronary artery disease was well- 15 controlled. 16 February of 2005, Dr. Dacanay stated [plaintiff] is doing well from a 17 cardiac standpoint and her cardiac condition is stable. 18 188. 19 substantial evidence bolstering the ALJ s adverse credibility 20 determination. 21 the medical record is a sufficient basis for rejecting the claimant s 22 subjective testimony. ); Burch, 400 F.3d at 681 ( Although lack of 23 medical evidence cannot form the sole basis for discounting pain 24 testimony, it is a factor that the ALJ can consider in his credibility 25 analysis. ). 26 // 27 // 28 // A.R. 20. Specifically, the ALJ cited an exercise stress A.R. 20, 212. Additionally, the ALJ noted that in A.R. 20, These findings, all of which are supported by the record, are See Carmickle, 533 F.3d at 1161 ( Contradiction with Thus, the ALJ provided clear and convincing reasons 13 1 for rejecting [plaintiff s] testimony as not credible. 2 Tommasetti, 533 F.3d at 1037; Burch, 400 F.3d at 681. 3 4 ORDER 5 IT IS ORDERED that: (1) plaintiff s request for relief is denied; 6 and (2) the Commissioner s decision is affirmed, and Judgment shall be 7 entered in favor of defendant. 8 9 DATE: Sept. 18, 2008 10 11 /s/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\07-6118.mdo 9/18/08 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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