Brenda G. Robinson v. Michael J. Astrue, No. 2:2010cv08111 - Document 21 (C.D. Cal. 2011)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. See order for further details. (jy)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 BRENDA G. ROBINSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _______________________________) NO. CV 10-8111-SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Brenda G. Robinson ( Plaintiff ) brings this action seeking to 22 overturn the decision by the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 her application for Supplemental Security Income ( SSI ) and Disability 25 Insurance Benefits ( DIB ). 26 U.S.C. § 636(c), to the jurisdiction of the undersigned United States 27 Magistrate Judge. 28 Commissioner is AFFIRMED. The parties consented, pursuant to 28 For the reasons stated below, the decision of the 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for SSI on August 21, 2006 and DIB 5 on August 28, 2006. 6 alleged a disability onset date of December 31, 2002 (AR 121), due to 7 [b]ad 8 arthritis. 9 onset date to November 1, 2004. (AR 160). 10 this claim on January 5, 2007. (AR 70). back, (Administrative Record ( AR ) 121-133). scoliosis, (AR 144). back spasms, bone deterioration She [and] Plaintiff subsequently amended her disability The Agency initially denied 11 12 Plaintiff s claim was reconsidered, and subsequently denied by the 13 Agency on March 30, 2007. (AR 79). 14 (AR 86), which was held on May 21, 2008 before an Administrative Law 15 Judge ( ALJ ). 16 represented by an attorney. 17 issued a decision denying benefits. (AR 98). Plaintiff then requested a hearing Plaintiff testified at the hearing while (AR 27). On October 22, 2008, the ALJ (AR 18-26). 18 19 Plaintiff s request for review of the ALJ decision was denied by 20 the Appeals Council on September 3, 2010, (AR 1), making the ALJ 21 decision the final decision of the Agency. 22 Plaintiff commenced the instant action. On October 27, 2010, 23 24 III. 25 FACTUAL BACKGROUND 26 27 28 Plaintiff was born on February 18, 1953. (AR 121). Prior to her alleged disability onset date, Plaintiff worked a variety of jobs 2 1 including: home attendant; cafeteria server; retail sales clerk; child 2 monitor; and companion/caregiver. 3 different ALJ found that Plaintiff was capable of performing light work 4 (AR 180), but she failed to prosecute her appeal on that determination. (AR 221). On July 21, 2003, a 5 6 7 A. Plaintiff s Medical History 8 9 On February 14, 2001, Dr. Frank W. Cunningham diagnosed Plaintiff 10 with chronic ten-year episodic low back pain, present status low back 11 pain radiculitis, but no radicululopathy. 12 2001, 13 Afterwards, Plaintiff made frequent and continuous visits to the AltaMed 14 Community Health Clinic ( AltaMed ). 15 While the majority of these visits were for prescription refills, there 16 were numerous occasions in which Plaintiff sought treatment for her 17 alleged disabilities, consisting of lower back pain, leg pain, and 18 respiratory issues. she began taking Albuterol for (AR 176). asthma On October 29, treatment. (Id.). (AR 226-369, 405-20, 426-28). (Id.). 19 20 On January 17, 2002, Plaintiff visited AltaMed because she felt 21 back and hip pain. (AR 294). An x-ray of the right hip revealed no 22 evidence of fracture or dislocation. 23 destructive changes [were] identified. 24 evidence showed mild degenerative changes . . . [o]steopenia. 25 Similarly, an x-ray of Plaintiff s lumbar spine showed only mild disc 26 space narrowing and lumbar scoliosis with convexity to the right. 27 (Id.). 28 3 No significant degenerative or (AR 342). Instead, the (Id.). 1 Plaintiff returned to AltaMed on March 22, 2002 with pain in her 2 right leg. (AR 287). However, an x-ray showed no evidence of fracture 3 or dislocation. 4 changes [were] identified. (AR 341). 5 visited of 6 physician expressed concern for Plaintiff s smoking and prescribed 7 Bupropion HCI for smoking cessation. 8 Plaintiff expressed concern for a new pain in the back of her neck. 9 282). Moreover, no significant degenerative or destructive AltaMed complaining a On April 12, 2002, Plaintiff cough. (AR 286). (Id.). The treating On August 10, 2002, (AR An x-ray did not reveal a fracture, dislocation, or significant 10 degenerative change, but there was evidence of straightening of the 11 cervical spine most consistent with muscle spasm. (AR 340). 12 13 On November 19, 2002, Plaintiff went to AltaMed for a full checkup. 14 (AR 337). An x-ray of her chest showed that the heart was normal and 15 free of a cardiopulmonary disease event. 16 Plaintiff returned to AltaMed complaining of pain in her right hand that 17 had 18 satisfactory, without signs of degeneration or other serious issues. 19 (AR 336). lingered for six days. (AR (Id.). 269). On January 13, 2002, The x-ray returned 20 21 Over the next few years, Plaintiff returned to AltaMed primarily to 22 refill her prescriptions. 23 appointments, Plaintiff expressed continued pain in her lower back and 24 right leg. (Id.). 25 degeneration 26 respiratory issues. 27 (i.e., 28 significant health issues. of cancer, (AR 228-68). During most prescription However, none of her x-rays revealed significant muscles or bones, (AR 331-42). cholesterol, nor were there any signs of Moreover, Plaintiff s routine checks diabetes) (AR 297-330). 4 also failed to indicate Medical records from January 1 5, 2007 to April 10, 2008 reflect Plaintiff s consistent pattern of 2 returning to AltaMed with complaints. 3 ever discovered. However, no serious issues were (AR 405-20, 426-28). 4 5 In addition to AltaMed, Plaintiff went to Pomona Valley Hospital 6 for chest pressure with some left arm tingling and leg swelling on 7 December 14, 2004. 8 treating physician gave her Vicodin and Motrin for the pain. 9 October 20, 2006, Plaintiff went to Los Angeles County-USC Medical (AR 433). When her tests returned normal, the (Id.). On 10 Center for stomach pains. (AR 371). Tests revealed a gastric ulcer 11 without signs of a tumor. (AR 372). From April 30, 2007 to May 2, 12 2007, Plaintiff was hospitalized again at Pomona Valley Hospital for 13 headaches and nausea. 14 and Plaintiff was given medication for her pain before being discharged. 15 (Id.). 16 Hospital complaining of shortness of breath, asthma exacerbation, 17 peptic ulcer disease, headache, and COPD. 18 that Plaintiff suffered from pnuemonia and influenzia. (Id.). Dr. Amit 19 Paliwal recommended that she stop smoking. However, Plaintiff did not 20 comply. (AR 391). An emergency CAT scan was negative, On February 9, 2009, Plaintiff was readmitted to Pomona Valley (AR 513). Tests revealed (AR 519). 21 22 B. Examining Sources 23 24 On November 1, 2006, Dr. Bryan To conducted an independent internal 25 medicine evaluation of Plaintiff. 26 Plaintiff s 27 irritation. Straight-leg raise was positive. [Plaintiff s] range of 28 motion was decreased. back pain elicits (AR 377). (AR 375). some minor According to Dr. To, findings of nerve root However, Dr. To found no evidence of 5 1 deformities, swelling, or tenderness of Plaintiff s joints despite 2 Plaintiff s complaints of pain throughout the exam. 3 Dr. To found no evidence of respiratory distress. 4 concluded that Plaintiff could frequently carry up to ten pounds and 5 occasionally carry up to twenty pounds. 6 concluded that Plaintiff could stand and walk for up to six hours in an 7 eight-hour workday and that there were no restrictions on how long 8 Plaintiff could be seated during an eight-hour work day. 9 To also opined that Plaintiff could occasionally walk on uneven terrain, (Id.). (Id.). (Id.). Moreover, (Id.). Dr. To Further, Dr. To (AR 378). Dr. 10 climb ladders, and work with heights. Additionally, he found 11 that Plaintiff could bend, kneel, stoop, crawl, and crouch occasionally. 12 (Id.). 13 14 On April 10, 2008, one of Plaintiff s treating physicians, Dr. 15 Christian Rico, submitted a residual 16 questionnaire based on his monthly interactions with Plaintiff, which 17 began in April 2003. 18 occasionally lift up to ten pounds, rarely lift up to twenty pounds, and 19 never lift more than 50 pounds. 20 Plaintiff could stand and walk less than two hours out of an eight-hour 21 work day with normal breaks and sit for up to four hours out of an 22 eight-hour work day with normal breaks. (AR 422). functional capacity ( RFC ) Dr. Rico opined that Plaintiff could (AR 424). Further, Dr. Rico found that (Id.). 23 24 Dr. Rico opined that emotional factors do not contribute to the 25 severity of Plaintiff s symptoms, but also checked off "depression" and 26 "anxiety" 27 condition." 28 or treatment. Additionally, Dr. Rico listed shortness of breath related as "psychological conditions affecting her physical (AR 423). However, he did not cite any psychological tests 6 1 to chronic obstructive pulmonary disease as a limiting factor, but 2 asserted that Plaintiff s impairment is mostly with her back pain. 3 (AR 425). 4 5 C. Consultative Sources 6 7 On November 20, 2006, consulting physician B. X. Vaghaiwalla 8 submitted 9 the a physical residual functional capacity assessment based on evidence in Plaintiff s file. (AR 380). According to Dr. 10 Vaghaiwalla, Plaintiff could occasionally lift or carry up to twenty 11 pounds, and frequently lift or carry up to ten pounds. 12 Further, Dr. Vaghaiwalla found that Plaintiff could stand and walk for 13 up to six hours in an eight-hour workday and sit up to six hours in an 14 eight-hour 15 Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and 16 crawl. (AR 382). However, Dr. Vaghaiwalla opined that Plaintiff should 17 avoid concentrated exposure to extreme cold and heat, fumes, odor, dust, 18 gases, poor ventilation, and hazardous machinery and heights. (AR 383). workday. (Id.). Dr. Vaghaiwalla also (AR 381). concluded that 19 20 D. Vocational Expert s Testimony 21 22 Steven M. Berry, a vocational (AR 49). expert ( VE ), testified at 23 Plaintiff s hearing. After receiving a complete list of 24 Plaintiff s past work experience and duties, Mr. Berry concluded that 25 Plaintiff could perform some of her past work. 26 Mr. Berry stated that the Companion job can be performed . . . the 27 Cafeteria Worker in that part of the time was spent as a Menu Maker . . 28 . the Child Monitor jobs as she performed them and as very often are 7 (AR 58). Specifically, 1 performed at the light exertional level . . . and the Retail Sales 2 Clerk. (Id.). 3 4 Mr. Berry stated that there are jobs in the national economy that 5 fit Plaintiff s working capacity. (Id.). 6 that there were 2,000 regional (24,000 national) openings for the 7 unskilled and light exertional position of Informational Clerk. 8 Further, Mr. Berry reported that there were 6,000 regional (72,000 9 national) positions for Cashier II, which is also a light exertional (AR 58-59). Specifically, he asserted 10 level, unskilled job. 11 regional (160,000 national) Small Parts Assembly jobs. (Id.). Mr. Berry also reported 14,000 (Id.). 12 13 E. Plaintiff s Testimony 14 15 At the 2008 hearing, Plaintiff testified that the only exercise she 16 performs is sit[ting] on the bed and kick[ing] [her legs] for [m]aybe 17 20 minutes. 18 assistance. 19 2006, she had a part-time job babysitting teenage girls for three hours 20 a day, five days a week. 21 explained that she worked as a bus driver for disabled adults, which 22 ended when her doctor put [her] on limitations due to [her] back. (AR 23 44). 24 and that the pain in her legs and her back prevent her from working 25 because she gets spasms. (AR 35-36). She showers and dresses herself without (AR 36). Plaintiff stated that from November 2005 to April (AR 42-43). Prior to that, Plaintiff Plaintiff confirmed that she sometimes had trouble breathing, (AR 45). 26 27 28 Plaintiff also testified about her work experience prior to her alleged onset date of disability. (AR 51-57). 8 Specifically, Plaintiff 1 asserted that in 2000, she worked as a retail clerk at a thrift store 2 for 20 hours a week. 3 Sherman for eight months on a full-time schedule in 1997-1998. 4 53). 5 home services. 6 testified that she served trays of food, made menus, and lifted a 7 maximum of twenty pounds. 8 as a menu maker in 1999 as well, along with babysitting for three months 9 in the summer. (AR 51). Then she was a menu maker for Robert (AR 52- While working for Mr. Sherman, Plaintiff cooked and provided in(AR 53). (AR 55). In her capacity as menu maker, Plaintiff (AR 56). Plaintiff confirmed that she worked After those positions, Plaintiff worked as a 10 caregiver. (AR 53). As a caregiver, Plaintiff assisted elderly persons 11 with personal hygiene, bathing, dressing, cooking, running errands, 12 cleaning, and never lifted more than twenty pounds. (AR 56-57). 13 14 F. Consultant s Testimony 15 16 At Plaintiff s 2008 hearing, consulting physician Dr. Joseph E. 17 Jensen testified that Plaintiff s medical history would limit her 18 functionality in the following ways: 19 20 To the point of only occasionally being able to lift and carry 21 to 20 pounds [sic] or ten pounds frequently, a combine [sic] 22 standing and walking a total of six hours, sitting six hours 23 in an eight-hour day with the opportunity every 60 minutes to, 24 at the work site, change position from up to five minutes. 25 Postural activities, she could occasionally manage stairs, 26 ramps, could occasionally stoop, crouch, kneel, and crawl. 27 She could occasionally walk on uneven terrain and a pedal 28 operation with either foot could 9 be occasional but not 1 frequent. Use of her upper extremities for gross and fine 2 manipulation 3 precluded from working at unprotected heights or climbing of 4 ladders, ropes, or scaffolding, and, I believe, that would 5 cover the physical limitations. frequent but not constant. She would be 6 7 (AR 48-49). Plaintiff s counsel declined an opportunity to question Dr. 8 Jensen. (AR 49). 9 10 IV. 11 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 12 13 To qualify for disability benefits, a claimant must demonstrate a 14 medically determinable physical or mental impairment that prevents him 15 from engaging in substantial gainful activity1 and that is expected to 16 result in death or to last for a continuous period of at least twelve 17 months. 18 U.S.C. § 19 incapable of performing the work he previously performed and incapable 20 of performing any other substantial gainful employment that exists in 21 the national economy. 22 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 423(d)(1)(A)). The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 23 24 25 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 10 1 To decide if a claimant is entitled to benefits, an ALJ conducts a 2 five-step inquiry. 3 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 4 5 (1) Is the claimant presently engaged in substantial gainful 6 activity? If so, the claimant is found not disabled. If 7 not, proceed to step two. 8 9 (2) Is the claimant s impairment 10 claimant is found not disabled. 11 severe? If not, the If so, proceed to step three. 12 13 (3) Does the claimant s impairment meet or equal one of a 14 list of specific impairments described in 20 C.F.R. Part 15 404, Subpart P, Appendix 1? If so, the claimant is found 16 disabled. If not, proceed to step four. 17 18 (4) Is the claimant capable of performing her past work? 19 so, the claimant is found not disabled. 20 If If not, proceed to step five. 21 22 (5) Is the claimant able to do any other work? If not, the 23 claimant is found disabled. If so, the claimant is found 24 not disabled. 25 26 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(a)(4)(i)- 27 (v), 416.920(a)(4)(i)-(v); Bustamante v. Massanari, 262 F.3d 949, 953-54 28 (9th Cir. 2001) (citations omitted). 11 1 The claimant has the burden of proof at steps one through four, and 2 the Commissioner has the burden of proof at step five. Bustamante, 262 3 F.3d at 953-54. 4 establishing an inability to perform past work, the Commissioner must 5 show that the claimant can perform some other work that exists in 6 significant numbers in the national economy, taking into account the 7 claimant s residual functional capacity ( RFC ), age, education, and 8 work experience. 9 721; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner 10 may do so by the testimony of a VE or by reference to the Medical- 11 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 12 Appendix 2 (commonly known as the Grids ). 13 F.3d 1157, 1162 (9th Cir. 2001). 14 (strength-related) 15 inapplicable and the ALJ must take the testimony of a VE. 16 Apfel, 216 F.3d 864, 869 (9th Cir. 2000). If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at and Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional limitations, the Grids are Moore v. 17 18 V. 19 THE ALJ S DECISION 20 21 The ALJ concluded that Plaintiff was not disabled after employing 22 the five-step sequential evaluation process. 23 the ALJ found that Plaintiff had not engaged in substantial gainful 24 activity since July 22, 2003. 25 Plaintiff s impairment was severe because of chronic low back pain, 26 osteoarthritis of the lumbar spine and right hip, cervical and lumbar 27 spondylosis, and chronic obstructive pulmonary disease with occasional 28 shortness of breath and [she] is obese which in combination result in (AR 20). 12 (AR 20-25). At step one, At step two, the ALJ found that 1 more than minimal limitations on her ability to perform work related 2 tasks. (AR 21). 3 4 At step three, the ALJ found that Plaintiff s severe impairment did 5 not meet, and was not medically equivalent to, a listed impairment. 6 (Id.). At step four, the ALJ adopted the following RFC: 7 8 [Plaintiff] has the residual functional capacity to perform 9 light work which permits lifting and carrying 20 pounds 10 occasionally and 10 pounds frequently; sitting for six hours 11 out of an eight-hour day, and standing/walking for six hours 12 out of an eight-hour day with a change of position briefly up 13 to five minutes every hour; no walking over uneven terrain; 14 occasional 15 pulling 16 pushing and pulling and operating foot controls; no climbing 17 ladders/scaffolds, but occasional climbing stairs, bending, 18 balancing, 19 frequent but not continuous handling/gross manipulation as in 20 grasping, twisting, turning, objects with both hands; frequent 21 but not continuous fine manipulation dexterity/fingering with 22 both 23 concentrated exposure to dust, fumes or gases. use and of the upper occasional stooping, hands; no use extremities of kneeling, working at the for and extremities lower pushing for crouching, unprotected and crawling; heights; and no 24 25 (AR 21). 26 27 28 The ALJ supported this finding by concluding that while Plaintiff s impairments could reasonably be 13 expected to produce the alleged 1 symptoms . . . [Plaintiff s] statements concerning the intensity, 2 persistence and limiting effect of [her] symptoms are not entirely 3 credible. 4 Plaintiff s hip, leg, lower back, and neck that were not consistent with 5 Plaintiff s complaints. 6 assessment of Plaintiff s back, which found that [s]traight leg was 7 positive, but motor strength, reflexes and sensation were all normal. 8 (Id.). 9 were (AR 23). Specifically, the ALJ pointed to x-rays of (Id.). Moreover, the ALJ relied on Dr. To s Further, the ALJ asserted that Plaintiff s complaints of asthma not consistent with a chest x-ray, which showed no acute 10 cardiopulmonary disease, or examinations of Plaintiff s heart and lungs 11 in November 2006, which were normal. 12 all of Plaintiff s hospital diagnostic studies were negative for any 13 pathologies, and pointed out that Plaintiff was always discharged in a 14 stable 15 Plaintiff s RFC was consistent with the opinions of consulting medical 16 expert Dr. Jensen, and examining physician Dr. To. condition. (Id.). (Id.). Additionally, The ALJ then asserted that the ALJ concluded that (Id.). 17 18 The ALJ discounted the opinion of Plaintiff s treating physician, 19 Dr. Rico. (AR 24). The ALJ first noted that Dr. Rico s opinion was 20 excessive in view of the contradictory functional assessments given by 21 Dr. To, Dr. Jensen, and the State Agency reviewer, and in view of the 22 nature and extent of the claimant s treatment. 23 ALJ observed that Dr. Rico s checked-off findings that "depression and 24 anxiety as contributing factors" to Plaintiff s physical condition, was 25 not supported by records of psychiatric treatment or counseling. (Id.). 26 Finally, the ALJ pointed out that while Dr. Rico s recommendations 27 called for Plaintiff to stop smoking, there is no indication that she 28 ever followed through with his advice. 14 (AR 24). (AR 24-25). Further, the 1 The ALJ determined that Plaintiff could perform light exertional 2 past work. (AR 23). Based on the testimony of the vocational expert, 3 the ALJ concluded that Plaintiff could perform her past relevant work as 4 cafeteria worker, companion, child monitor, and retail sales person. 5 (AR 25). Consequently, the ALJ determined that Plaintiff was not 6 disabled. (Id.). 7 8 VI. 9 STANDARD OF REVIEW 10 11 Under 42 U.S.C. § 405(g), a district court may review the 12 Commissioner s decision to deny benefits. A court may set aside the 13 Commissioner s decision when the ALJ s findings are based on legal error 14 or are not supported by substantial evidence in the record as a whole. 15 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 16 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 17 18 Substantial evidence is more than a scintilla, but less than a 19 preponderance. 20 which 21 conclusion. (Id.). To determine whether substantial evidence supports 22 a finding, the court must consider the record as a whole, weighing 23 both 24 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 25 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 26 reasonably support either affirming or reversing that conclusion, the 27 court may not substitute its judgment for that of the Commissioner. 28 Reddick, 157 F.3d at 720-21. a Reddick, 157 F.3d at 720. reasonable evidence that person might supports accept and It is relevant evidence as evidence 15 adequate that to detracts support from a the If the evidence can 1 VII. 2 DISCUSSION 3 4 A. The ALJ Provided Specific And Legitimate Reasons To Reject Dr. Rico s Opinion 5 6 7 Plaintiff argues that the ALJ rejected Dr. Rico s opinion without 8 providing specific, legitimate reasons, and that [t]he ALJ . . . 9 committed legal error by rejecting outright Dr. Rico s opinions when, in 10 fact, the ALJ still should have considered Dr. Rico s opinions as to 11 whether it is [sic] still entitled to the greatest weight and should be 12 adopted even if it was not entitled to controlling weight. 13 Memorandum ( Complaint Memo. ) at 9). 14 that 15 Plaintiff s mental limitations. 16 argues 17 limitations and that the mental diagnosis was not dispositive in Dr. 18 Rico s overall opinion. the ALJ that improperly Dr. Rico s rejected (Id.). Additionally, Plaintiff argues Dr. Rico s (Id. at 10). opinion (Complaint was based opinion concerning Specifically, Plaintiff primarily on physical The Court disagrees. 19 20 If the treating physician s opinion is contradicted by another 21 doctor, the ALJ may not reject this opinion without providing specific, 22 legitimate reasons, supported by substantial evidence in the record. 23 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); Lester v. 24 Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 25 discredit treating physicians opinions that are conclusory, brief, and 26 unsupported by the record as a whole, or by objective medical findings. 27 Batson v. Comm r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004). 28 16 However, the ALJ may 1 The opinion of a consultative examiner, if supported by clinical 2 tests and observations upon examination, is substantial medical evidence 3 and may be relied upon by the ALJ in order to determine the claimant s 4 RFC. 5 solely the duty of the ALJ to resolve a conflict between a consultative 6 examiner opinion and a treating physician s opinion. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). It is Id. 7 8 9 Here, the ALJ provided specific and legitimate reasons supported by substantial evidence in the record to reject Dr. Rico s opinion. 10 Lester, 81 F.3d at 830-31. 11 Dr. 12 functional assessments given by Dr. To, Dr. Jensen, and the State Agency 13 reviewer, and in view of the nature and extent of the [Plaintiff s] 14 treatment. 15 lift ten pounds occasionally, be on her feet for only two hours in an 16 eight-hour work day, and sit for only four hours in an eight-hour day 17 (AR 424), Dr. To found that Plaintiff could frequently lift ten pounds, 18 occasionally lift twenty pounds, be on her feet for up to six hours in 19 an eight-hour day, and that Plaintiff had no sitting limitations. 20 375). 21 which never showed signs of serious degeneration of muscles or bones, or 22 any disabling respiratory issues. 23 opinion is consistent with the results from Plaintiff s exams. (AR 297- 24 330). 25 48-49) and Dr. Vaghaiwalla s report (AR 381) confirmed that Plaintiff 26 could perform light work. Rico s opinion (AR 24). was Specifically, the ALJ correctly found that excessive in view of the contradictory While Dr. Rico opined that Plaintiff could only (AR Dr. To s opinion incorporated the results of Plaintiff s x-rays, (AR 331-42). Further, Dr. To s Relying on the same medical evidence, Dr. Jensen s testimony (AR 20 C.F.R. § 404.1537(b). 27 28 17 1 Additionally, the ALJ correctly noted that Plaintiff s treatment 2 record does not support Dr. Rico s extreme findings. 3 Dr. Rico believes that Plaintiff s medications do not adequately 4 control her 5 corroborate the degree of pain she expressed. 6 Moreover, after examining Plaintiff, Dr. To determined that there was 7 no evidence of deformities, swelling, or tenderness of Plaintiff s 8 joints, nor did he find evidence of respiratory issues. 9 ALJ also correctly noted that Plaintiff received generally conservative pain (AR 424), none of Plaintiff s (AR 24). (AR 24). Although diagnostic tests (AR 331-42, 391). (AR 377). The 10 treatment relative to her complaints. Further, Plaintiff s 11 failure to adhere to the physicians repeated recommendations to stop 12 smoking and perform exercise also undermines Dr. Rico s assessment. See 13 Warre v. Comm r, 439 F.3d 1001, 1006 (9th Cir. 2006) (reasoning that 14 impairments that can be controlled are not disabling). 15 16 The ALJ also properly determined that Dr. Rico s assessment that 17 depression and anxiety contributed to [Plaintiff s] physical condition 18 was not supported by diagnostic tests or treatment records. 19 The medical record, including Dr. Rico s records, are devoid of any 20 treatment 21 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (finding that 22 an ALJ properly relied on inconsistencies between the treating doctor s 23 opinion and the medical record to discredit the opinion). 24 Dr. Rico does not appear to be a psychiatrist or psychologist, so his 25 opinions on mental health issues are entitled to less weight. 26 246 F.3d at 1202-03, n.2 (finding that a treating physician s opinion is 27 entitled 28 physician s or to diagnostic less weight expertise). records if it Thus, pertaining pertains the 18 ALJ to to mental matters correctly (AR 24). limitations. Moreover, Holohan, outside relied on the the 1 inconsistency between Dr. Rico s opinion and the medical record as a 2 specific and legitimate reason to reject Dr. Rico s opinion. 3 4 Finally, the ALJ properly considered the fact that Plaintiff failed 5 to adhere to Dr. Rico s treatment advice concerning walking and smoking. 6 (AR 24-25). 7 revolves around back pain, he listed shortness of breath related to 8 chronic obstructive pulmonary disease as another disabling factor. 9 425). Although Dr. Rico opined that Plaintiff s chief complaint (AR The ALJ was correct in pointing out that Plaintiff was still 10 smoking despite Dr. Rico s advice to quit (AR 427), and Plaintiff 11 admitted that she did not walk and only did leg exercises in bed. 12 35-36). 13 Plaintiff s limitation could be mitigated by following Dr. Rico s 14 advice, which the ALJ properly considered when she discredited Dr. 15 Rico s assessment. 16 1982) (finding that an ALJ is entitled to draw inferences that logically 17 flow from the evidence). 18 legitimate reasons supported by substantial evidence in the record to 19 reject Dr. Rico s opinion. (AR Dr. Rico s recommendations suggest that at least a portion of Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. In sum, the ALJ provided specific and 20 21 22 B. The ALJ Properly Determined That Plaintiff Could Perform Her Past Relevant Work 23 24 Plaintiff argues that she cannot perform her past relevant work. 25 (Complaint Memo. at 3-8). Specifically, Plaintiff argues that her 26 average monthly income in 1999, 2000, 2004, 2005 and 2006 fell below the 27 threshold average monthly income to be considered substantial gainful 28 activity and therefore excluded certain jobs from being classified as 19 1 past relevant work. 2 position as a Home Attendant qualifies as past relevant work, but argues 3 that the demands of that position exceed Plaintiff s residual functional 4 capacity. (Id. At 7). (Id.). Further, Plaintiff concedes that her The Court disagrees. 5 6 Past relevant work is work that [a claimant has] done within the 7 past 15 years, which was substantial gainful activity, and that lasted 8 long enough for [the claimant] to learn to do it. 9 404.1560(b)(1) and 416.960(b)(1). 20 C.F.R. §§ Substantial gainful activity is 10 defined as work activity that involves doing significant physical or 11 mental activities . . . that [a claimant does] for pay or profit. 12 C.F.R. §§ 404.1572 and 416.972. 13 substantial gainful activity is made if that person s average monthly 14 income exceeded $500 per month for any period between 1990 and June 15 1999, or exceeded $700 per month for any period between July 1999 and 16 December 2000. 17 alone is not dispositive and other factors may rebut the presumption, 18 such as the time spent working, quality of a [claimant s] performance, 19 special working conditions, and the possibility of self-employment. 20 Katz v. Sec. of Health and Human Servs., 972 F.2d 290, 293 (9th Cir. 21 1992). 20 A presumption that a person engaged in 20 C.F.R. §§ 404.1574 and 416.974. However, earnings 22 23 The Agency calculates monthly earnings by averag[ing] earnings 24 over the entire period of work. 20 C.F.R. §§ 404.1574a(a) and 25 416.974a(a) (emphasis added); see also Anderson v. Heckler, 726 F.2d 26 455, 457 (8th Cir. 1984) (holding that monthly earnings are calculated 27 by averaging earnings over months actually worked instead of averaging 28 earnings over the entire year). If a claimant s earnings level or work 20 1 pattern significantly changes during the period of work, the Agency will 2 average earnings during each period of work separately. 3 404.1574a(b)&(c) and 416.974a(b)&(c). 20 C.F.R. §§ 4 5 Plaintiff claims that average monthly income is defined as annual 6 income divided by twelve months, regardless of the number of months she 7 actually 8 interpretation is inconsistent with the language of 20 C.F.R. sections 9 404.1574a(a) and 416.974a(a). worked. (See Complaint Memo. at 4-5). Plaintiff s Specifically, the phrase the entire 10 period of work clearly indicates only the time actually employed. 11 Anderson, 726 F.2d at 457. 12 income to mean total income divided by the number of months that a 13 claimant actually worked. Therefore, the Court finds average monthly 14 15 Because the ALJ determined that Plaintiff has not engaged in 16 substantial gainful activity since July 22, 2003, (AR 20), any work 17 after this date does not qualify as substantial gainful activity and 18 cannot be considered past relevant work. 19 416.960. 20 irrelevant, and this Court will address only Plaintiff s challenges 21 regarding employment prior to July 22, 2003. See 20 C.F.R. §§ 404.1560 and Therefore, Plaintiff s challenges regarding 2004 and 2005 are 22 23 Substantial evidence in the record supports the ALJ s conclusion 24 that Plaintiff s past relevant work as a cafeteria worker, companion, 25 and retail salesperson qualified as substantial gainful activity. 26 25). 27 earning $8337.07 as a retail salesperson. 28 average monthly income was roughly $1,389.51, exceeding the $700 minimum (AR Plaintiff testified that she worked for six months in 2000, 21 (AR 51, 137). Plaintiff s 1 monthly income for 2000. 20 C.F.R. §§ 404.1574 and 416.974. Therefore, 2 the ALJ properly presumed that Plaintiff engaged in substantial gainful 3 activity in 2000 as a retail salesperson. 4 Additionally, Plaintiff s income while working as a companion/caregiver2 5 in 1997 and 1998, over $22,000 (AR 137), clearly surpassed the threshold 6 for creating a presumption of substantial gainful activity.3 7 §§ 404.1574 and 416.974. Katz, 972 F.2d at 293. 20 C.F.R. 8 9 Plaintiff failed to refute the presumption that this work 10 constituted substantial gainful activity because she did not establish 11 that the time spent working, [the] quality of [her] performance, 12 special working conditions, [or] the possibility of self-employment 13 showed that she did not engage in substantial gainful activity. 14 972 F.2d at 290. 15 jobs as a retail salesperson, companion, and cafeteria worker were 16 substantial gainful activity. Katz, As a result, the ALJ properly found that Plaintiff s 17 18 It is unclear whether Plaintiff s work as a babysitter for three 19 months in 1999 qualifies for a presumption of substantial gainful 20 activity because there is evidence that Plaintiff also worked as a menu 21 maker in that year for an undisclosed amount of time. 22 While Plaintiff earned a total of $5,462.27 in 1999, there is nothing in (AR 54-55). 23 24 2 25 26 27 28 The ALJ properly determined that this job entailed duties fitting both cafeteria worker and companion, as discussed later in this opinion. (AR 25). 3 In both 1997 and 1998, Plaintiff earned over $22,000. (AR 137). Even assuming Plaintiff worked the entire twelve months for these years, her monthly earnings were well over the $500 minimum requirement. 22 1 the record to reveal exactly how much of that amount was attributable to 2 babysitting. 3 whether Plaintiff s babysitter position rose to the level of substantial 4 gainful activity. Even if child monitor was erroneously included under 5 Plaintiff s relevant 6 Plaintiff s valid past relevant work experience still supports the ALJ s 7 finding that Plaintiff was not disabled. 8 F.3d 1155, 1162 (9th Cir. 2008) (finding that because the ALJ s error 9 was inconsequential to the ultimate non-disability determination, no 10 remand was required); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 11 2005) ( A decision of the ALJ will not be reversed for errors that are 12 harmless. ). (AR 54-55, 137). past Therefore, it cannot be determined work, the error is harmless because See Carmickle v. Comm r, 533 13 14 Plaintiff next argues that her prior positions with the Claudette 15 Dorothy Brisk Estate and Mr. Shermer should be properly classified under 16 the Dictionary of Occupational Titles ( DOT ) definition of home 17 attendant instead of cafeteria worker and companion. 18 at 6). (Complaint Memo. The Court disagrees. 19 20 An ALJ may not classify past relevant work under general headings, 21 Vertigan v. 22 characterize a claimant s past occupations based on an isolated duty 23 within his past occupation. 24 (9th Cir. 1985). 25 either the claimant s actual past functions or the functions generally 26 required 27 description does not account for all of a claimant s prior duties. of Halter, that 260 F.3d 1044, 1051-52 (9th Cir. 2001), or Valencia v. Heckler, 751 F.2d 1082, 1086 However, an ALJ may classify a position based on position in the 28 23 national economy even if the 1 Sanchez v. Sec. of Health and Human Servs., 812 F.2d 509, 511 (9th cir. 2 1987); 20 C.F.R. § 404.1560(b)(2). 3 4 The ALJ found that Plaintiff s past relevant work history included 5 cafeteria worker and companion, basing her conclusion on the VE s 6 testimony classifying Plaintiff s past relevant work under the DOT 7 definitions. 8 Maker job referred to, it appears to be a Cafeteria Worker or Server, 9 DOT number 311.677-010, light exertional level, unskilled, SVP 2 . . . 10 some of the Caregiver jobs fall into the category or classification as 11 a Companion, DOT number of 309.677-010, light exertional level, semi- 12 skilled, SVP 3. 13 the 14 Plaintiff directly. (AR 25). evidence, At the hearing, the VE stated that [t]he Menu (AR 57). listening The VE made his assessment after reviewing to Plaintiff s testimony, and questioning (AR 49, 55-57). 15 16 The DOT defines a cafeteria worker as someone who can carry trays 17 of food from counters to patrons and clean tables. DICOT 311.677-010, 18 1991 WL 672694. 19 carrying up to twenty pounds occasionally and ten pounds frequently. 20 Id. 21 Plaintiff confirmed that she had experience serving trays of food while 22 working for San Gabriel Hospital as well as Mr. Sherman. 23 Therefore, the ALJ s finding that Plaintiff s prior relevant work 24 included cafeteria worker was proper. This position is classified as light work requiring Plaintiff s RFC comports with the requirements (AR 21), and (AR 55-56). 25 26 The DOT defines a companion as a domestic service occupation that 27 requires light work. DICOT 309.677-010, 1991 WL 672667. 28 describes a companion as someone who tends to the personal needs of an 24 The DOT 1 employer and makes food for the employer. 2 Sherman, Plaintiff confirmed that she made food and provided in-home 3 services, and that she never lifted more than twenty pounds. 4 These duties appear to have been the essence of her job and she did not 5 mention other duties. 6 work comports to the description contained in the DOT as well as the 7 VE s opinion. The record supports the ALJ s conclusion that Plaintiff s 8 past 9 required. relevant work (See id.). included a Id. While working for Mr. (AR 56). Plaintiff s description of her past companion position. No remand is 10 11 VIII. 12 CONCLUSION 13 14 Consistent with the foregoing, and pursuant to sentence four of 42 15 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING the 16 decision of the Commissioner and dismissing this action with prejudice. 17 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 18 Order and the Judgment on counsel for both parties. 19 20 DATED: October 6, 2011 21 22 ________/S/___________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 23 24 25 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED 26 TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR 27 LEXIS. 28 25
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