Gwendolyn G. Kennedy v. Michael J. Astrue, No. 2:2010cv01338 - Document 15 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND OPINION 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 Court finds no error with regard to the Plaintiff's second issue, and consequently, this matter will be affirmed. The Complaint will be dismissed with prejudice. (rh)
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Gwendolyn G. Kennedy v. Michael J. Astrue Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 GWENDOLYN G. KENNEDY, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-01338-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 parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether The the Administrative Law Judge (“ALJ”) erred in Dockets.Justia.com 1 2 rejecting the opinion of the non-examining physician; and 2. Whether the ALJ erred in accepting testimony from the 3 4 vocational expert. (JS at 4.) 5 6 This Memorandum Opinion will constitute the Court’s findings of 7 fact and conclusions of law. After reviewing the matter, the Court 8 concludes that the decision of the Commissioner must be affirmed. 9 10 I 11 THE ALJ DID NOT ERR IN ASSESSING 12 PLAINTIFF’S RESIDUAL FUNCTIONAL CAPACITY 13 14 Plaintiff frames her first issue as “whether the ALJ erred in rejecting the opinion of the non-examining physician.” (JS at 4.) 15 Plaintiff is referencing the testimony of the medical examiner 16 (“ME”), Dr. Sparks, who testified at the hearing before the ALJ. (AR 17 23-43.) 18 Plaintiff has vocal dystonia with weak voice; she has had a Botox 19 vocal cord injection; she has hypertension with fair control; she had 20 asthma, controlled; she has a history of migraine headaches; she has 21 a history of dislocation of the left shoulder; she has a history of 22 back pain, pain in the wrist and fingers and fingers and ankles with 23 no definite diagnosis; she has enlarged fascit in the cervical spine; 24 and she is obese. (JS at 32.) 25 conditions, singularly or in combination, did not rise to the level of 26 the Listings. 27 ability: 28 Dr. Sparks reviewed the medical evidence, and assessed that Dr. Sparks indicated that these He assessed that she had the following exertional “She could occasionally lift 20 pounds, frequently 10. 2 1 Stand and walk six hours, sit for six hours. 2 limits, no ladders, ropes, scaffolding. 3 occasional. 4 the left arm. Manipulation, there’s no impairment according 5 to the internal medicine examiner. 6 should avoid concentrated exposure to extreme cold, no 7 exposure to unprotected heights or hazardous machinery. 8 Finally she should not work in a noisy environment or where 9 there is a need for a loud voice.” 10 Postural The rest are all She should do no over-the-shoulder work with And environmental she (AR 32-33.) 11 12 The ALJ found that Plaintiff has severe impairments of vocal 13 dysphonia with weak voice, hypertension, asthma, history of left 14 shoulder dislocation, history of migraines, obesity, and enlarged 15 facet cervical spine. (AR 17.) 16 Dr. Sparks concerning Plaintiff’s functional abilities, noting his 17 conclusion that she could do “no work in a noisy environment where it 18 is necessary to speak in a loud voice. 19 adopts the testimony of the medical expert, ...” (AR at 20.) The ALJ summarized the testimony of The undersigned concurs and 20 Plaintiff asserts that the ALJ in fact rejected the opinion of 21 Dr. Sparks, because he eliminated the disjunctive “or” in assessing a 22 residual functional capacity (“RFC”) that allows “no work in a noisy 23 environment 24 Plaintiff asserts that Dr. Sparks specifically intended his assessment 25 to mean that Plaintiff could not work in a noisy environment or in an 26 environment where it is necessary for her to speak in a loud voice. 27 For the reasons set forth below, the Court concludes that the ALJ 28 reasonably [or] where interpreted a Dr. loud voice Sparks’ 3 is required.” opinion, and (AR that at no 18.) error 1 therefore occurred. 2 At the request of the Department of Social Services, Plaintiff on 3 May 29, 2008 received an internal medicine consultative evaluation 4 (“CE”) from Dr. Raja. 5 “will be able to lift or carry 20 pounds occasionally and 10 pounds 6 frequently, stand or walk six hours cumulatively in an eight-hour day 7 and she will be able to do frequent stooping and crouching. 8 be able to use her hands and fingers in repetitive hand-finger 9 actions.” (AR 183.) 10 Dr. Raja’s report indicates that Plaintiff She will Dr. Raja did not assess any limitations with regard to Plaintiff’s vocal dysphonia. 11 Plaintiff testified that because of her dysphonia, she cannot get 12 past a first job interview. (AR 27.) The ALJ adopted an RFC which 13 “limited [Plaintiff] to less than frequent verbal communication” (AR 14 18) due to her vocal dysphonia, which leaves her with a weak voice. 15 As an adjunct to that limitation, the ALJ found that Plaintiff cannot 16 work in a noisy environment where a loud voice is required. (Id.) 17 RFC 18 Plaintiff’s limitations in the area of vocal communication. 19 nothing in Plaintiff’s brief which would support a finding that she 20 has a per 21 Specifically, there is no evidence that Plaintiff has a hearing 22 impairment, that she has any difficulty when she is exposed to loud 23 noises or voices, or that she has any psychological or mental health 24 issues which would preclude her from being around a loud environment 25 or loud noises. She is precluded from working in an environment where 26 frequent communication or speaking in a loud voice would be necessary. 27 It is the province of the ALJ to interpret evidence, and where 28 that interpretation is reasonable or rational, it must be upheld by as determined se by the ALJ is clearly intended to The address There is need to be limited to a quiet work environment. 4 See Burch v. Barnhart, 400 F.3d 676, 678 (9th Cir. 2005). 1 the Court. 2 Based 3 dysphonia, the Court cannot find that the ALJ’s interpretation of the 4 ME’s testimony as to particular limitations related to this severe 5 impairment are either not rational or not reasonable. 6 reason, the Court finds no error with regard to Plaintiff’s first 7 issue. on the nature of Plaintiff’s severe impairment of vocal For that 8 9 II 10 THE ALJ DID NOT ERR WITH REGARD TO TESTIMONY 11 FROM THE VOCATIONAL EXPERT 12 In a related issue, Plaintiff asserts that the ALJ erred in 13 accepting testimony at Step Five of the sequential evaluation process 14 from the vocational expert (“VE”). 15 16 The ALJ posed a hypothetical question to the VE which included the following relevant limitations: 17 “Should not work in a noisy environment or where the 18 need for a loud voice. [sic] 19 that, 20 communication, verbal communication is not required, so less 21 than frequent verbal communication.” 22 should be And we’ll go ahead and add to limited to areas where frequent (AR 39.) 23 24 After considering this hypothetical, the VE identified the jobs 25 of inspector, hand packager; small products 26 assembler of plastic hospital parts. (AR 39-40.) assembler II; and 27 Plaintiff’s assessment of error inheres in the argument that the 28 identified work involves exposure to prohibited noise levels: “loud” 5 1 as to the occupation of inspector; “moderate” as to small products 2 assembler II and assembler of plastic hospital parts. 3 Plaintiff’s argument fails for essentially the same reasons as 4 her first issue. 5 to sustain loud or frequent speech. 6 the ALJ’s specific questions, the VE testified that none of the 7 identified occupations would require more than occasional verbal 8 communication, and they would not be in noisy environments. (AR 40.) 9 Further, the VE testified that her testimony was consistent with the 10 11 Again, Plaintiff’s impairment involves an inability At the hearing, in response to Dictionary of Occupational Titles (“DOT”). (Id.) While Plaintiff focuses on the level of noise in these work 12 environments, she ignores the fact that the DOT assesses no 13 requirement of talking for any of these occupations. 14 Plaintiff’s argument that there is a variance between the VE’s 15 testimony and the DOT requirements might hold water. If it did, 16 In sum, in this case, Plaintiff has a severe impairment which has 17 relevance to whether her voice could be heard in a particular work 18 setting. 19 that she use her voice in a frequent or loud manner. But for the occupations identified, there is no requirement 20 The Court finds no error with regard to Plaintiff’s second issue, 21 and consequently, this matter will be affirmed. The Complaint will be 22 dismissed with prejudice. 23 IT IS SO ORDERED. 24 25 26 DATED: November 23, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 27 28 6
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