Hector Hugo Lara Ramirez v. Carolyn W. Colvin, No. 2:2014cv00865 - Document 26 (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 shall file this Decision and Order and serve copies upon counsel for the parties. (wr)

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Hector Hugo Lara Ramirez v. Carolyn W. Colvin Doc. 26 O 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 Case No. 14-cv-00865 (VEB) 8 HECTOR HUGO LARA RAMIREZ, 9 DECISION AND ORDER Plaintiff, 10 vs. 11 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 14 I. INTRODUCTION 15 In April of 2010, Plaintiff Hector Hugo Lara Ramirez 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 – LARA RAMIREZ v COLVIN 14-CV-00865-VEB Dockets.Justia.com 1 Plaintiff, represented by Lowenstein Disability Lawyers, ALC, Janna K. 2 Lowenstein, Esq., of counsel, commenced this action seeking judicial review of the 3 Commissioner’s denial of 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 Nos. 11, 13, 22, 25). On December 28, 2015, this case was referred to the 6 undersigned pursuant to General Order 05-07. (Docket No. 24). 7 8 II. BACKGROUND 9 Plaintiff applied for benefits on April 29, 2010, alleging disability beginning 10 May 17, 2009, due to physical and mental impairments. (T at 131-37, 169).1 The 11 application was denied initially and on reconsideration. Plaintiff requested a hearing 12 before an Administrative Law Judge (“ALJ”). On August 9, 2012, a hearing was 13 held before ALJ Lisa D. Thompson. (T at 35). Plaintiff appeared with his attorney 14 and testified. (T at 40-52). The ALJ also received testimony from Gregory Jones, a 15 vocational expert (T at 52-59). 16 17 On August 23, 2012, the ALJ issued a written decision denying the application for benefits. (T at 16-34). 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 – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 Commissioner’s final decision on December 3, 2013, when the Appeals Council 2 denied Plaintiff’s request for review. (T at 1-6). 3 On February 4, 2014, Plaintiff, acting by and through his counsel, filed this 4 action seeking judicial review of the Commissioner’s decision. (Docket No. 3). The 5 Commissioner interposed an Answer on August 22, 2014. (Docket No. 15). The 6 parties filed a Joint Stipulation on November 17, 2014. (Docket No. 20). 7 After reviewing the pleadings, Joint Stipulation, and administrative record, 8 this Court finds that the Commissioner’s decision should be affirmed and this case 9 should be dismissed. 10 11 12 III. DISCUSSION A. Sequential Evaluation Process 13 The Social Security Act (“the Act”) defines disability as the “inability to 14 engage in any substantial gainful activity by reason of any medically determinable 15 physical or mental impairment which can be expected to result in death or which has 16 lasted or can be expected to last for a continuous period of not less than twelve 17 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 18 claimant shall be determined to be under a disability only if any impairments are of 19 such severity that he or she is not only unable to do previous work but cannot, 20 3 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 considering his or her age, education and work experiences, engage in any other 2 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 3 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 4 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 5 The Commissioner has established a five-step sequential evaluation process 6 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 7 one determines if the person is engaged in substantial gainful activities. If so, 8 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 9 decision maker proceeds to step two, which determines whether the claimant has a 10 medially severe impairment or combination of impairments. 20 C.F.R. §§ 11 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 12 If the claimant does not have a severe impairment or combination of 13 impairments, the disability claim is denied. If the impairment is severe, the 14 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 15 with a number of listed impairments acknowledged by the Commissioner to be so 16 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 17 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 18 equals one of the listed impairments, the claimant is conclusively presumed to be 19 disabled. If the impairment is not one conclusively presumed to be disabling, the 20 4 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 evaluation proceeds to the fourth step, which determines whether the impairment 2 prevents the claimant from performing work which was performed in the past. If the 3 claimant is able to perform previous work, he or she is deemed not disabled. 20 4 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 5 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 6 work, the fifth and final step in the process determines whether he or she is able to 7 perform other work in the national economy in view of his or her residual functional 8 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 9 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 10 The initial burden of proof rests upon the claimant to establish a prima facie 11 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 12 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 13 is met once the claimant establishes that a mental or physical impairment prevents 14 the performance of previous work. The burden then shifts, at step five, to the 15 Commissioner to show that (1) plaintiff can perform other substantial gainful 16 activity and (2) a “significant number of jobs exist in the national economy” that the 17 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 18 19 20 5 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-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 – LARA RAMIREZ v COLVIN 14-CV-00865-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 May 17, 2009 (the alleged onset date) and met the insured status 15 requirements of the Social Security Act through December 31, 2014 (the date last 16 insured). (T at 16). The ALJ found that Plaintiff’s cervical spine strain, status post 17 right knee and back injury, right knee chondromalacia, obesity, and depression were 18 “severe” impairments under the Act. (Tr. 21). 19 20 7 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-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 work at all exertional levels, with the following non-exertional 6 limitations: limited to work that involves understanding, remembering, and carrying 7 out simple, repetitive tasks and simple, detailed, and complex instructions, with no 8 more than frequent interaction with supervisors, co-workers, and the public and no 9 more than frequent crawling or kneeling. (T at 24). 10 11 The ALJ found that Plaintiff could perform his past relevant work as a laborer and warehouse worker. (T at 28). 12 Accordingly, the ALJ determined that Plaintiff was not disabled within the 13 meaning of the Social Security Act between May 17, 2009 (the alleged onset date) 14 and August 23, 2012 (the date of the ALJ’s decision) and was therefore not entitled 15 to disability insurance benefits. (T at 29). As noted above, the ALJ’s decision 16 became the Commissioner’s final decision when the Appeals Council denied 17 Plaintiff’s request for review. (T at 1-6). 18 19 20 8 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 D. Disputed Issues 2 As set forth in the Joint Stipulation submitted by the parties (Docket No. 20), 3 Plaintiff offers four (4) arguments in support of his claim that the Commissioner’s 4 decision should be reversed. First, he contends that the ALJ did not properly assess 5 the opinions of his treating providers. 6 credibility determination. Third, he argues that the ALJ denied him a full and fair 7 hearing. Fourth, Plaintiff asserts that the ALJ erred by finding that he could perform 8 his past relevant work. This Court will address each argument in turn. Second, Plaintiff challenges the ALJ’s 9 10 11 IV. ANALYSIS A. Treating Physician Opinions 12 In disability proceedings, a treating physician’s opinion carries more weight 13 than an examining physician’s opinion, and an examining physician’s opinion is 14 given more weight than that of a non-examining physician. Benecke v. Barnhart, 15 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 16 1995). If the treating or examining physician’s opinions are not contradicted, they 17 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 18 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 19 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 20 9 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 1035, 1043 (9th Cir. 1995). Historically, the courts have recognized conflicting 2 medical evidence, and/or the absence of regular medical treatment during the alleged 3 period of disability, and/or the lack of medical support for doctors’ reports based 4 substantially on a claimant’s subjective complaints of pain, as specific, legitimate 5 reasons for disregarding a treating or examining physician’s opinion. Flaten v. 6 Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 7 An ALJ satisfies the “substantial evidence” requirement by “setting out a 8 detailed and thorough summary of the facts and conflicting clinical evidence, stating 9 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 10 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 11 “The ALJ must do more than state conclusions. He must set forth his own 12 interpretations and explain why they, rather than the doctors’, are correct.” Id. 13 1. 14 In August of 2012, Dr. Matthew Maibaum, Plaintiff’s treating psychologist, 15 completed a Mental Residual Functional Capacity Questionnaire. Dr. Maibaum 16 described Plaintiff as “very depressed due to back pain” and noted that he suffered 17 from severe insomnia, pain disorder, and low endurance. (T at 535). Plaintiff’s 18 prognosis was described as “guarded.” (T at 535). With regard to Plaintiff’s mental 19 abilities and aptitudes with regard to work activities, Dr. Maibaum opined as 20 10 Dr. Maibaum DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 follows: Plaintiff is seriously limited, but not precluded from remembering work- 2 like procedures, carrying out very short and simple instructions, maintaining 3 attention for 2 hour segments, maintaining attendance and being punctual within 4 customary (usually strict) tolerances, sustaining an ordinary routine without special 5 supervision, making simple work-related decisions, completing a normal workday 6 and workweek without interruptions from psychologically-based symptoms, 7 responding appropriately to changes in a routine work setting, and dealing with 8 normal work stress. (T at 537). Dr. Maibaum found Plaintiff limited, but with 9 satisfactory abilities with regard to understanding, remembering, and carrying out 10 very short/simple instructions, working in coordination with or proximity to others 11 without being unduly distracted, asking simple questions or requesting assistance, 12 accepting instructions and responding appropriately to criticism from supervisors, 13 getting along with co-workers or peers without unduly distracting them or exhibiting 14 behavioral extremes, and being aware of normal hazards and taking appropriate 15 precautions. (T at 537). 16 In addition, Dr. Maibaum opined that Plaintiff was seriously limited, but not 17 precluded with regard to interacting with the general public. He found that Plaintiff 18 has limited (but satisfactory) abilities to maintain socially appropriate behavior. (T at 19 538). He concluded that Plaintiff was unable to meet competitive standards with 20 11 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 regard to travelling in unfamiliar places. (T at 538). Dr. Maibaum reported that 2 Plaintiff would likely miss work more than 4 days per month due to his impairments. 3 (T at 539). He does not believe Plaintiff is a malingerer. (T at 539). 4 The ALJ gave Dr. Maibaum’s opinion “little probative weight,” finding it 5 inconsistent with the objective medical evidence, including Dr. Maibaum’s own 6 clinical findings. (T at 28). For the following reasons, this Court finds the ALJ’s 7 decision supported by substantial evidence and consistent with applicable law. 8 Dr. Maibaum’s clinical findings indicated that Plaintiff had “signs of anxiety,” 9 but was “cooperative, punctual, and assertive,” with “an above-average intellectual 10 level” and “age-appropriate fund of knowledge.” (T at 343-43). He noted that 11 Plaintiff had “endorsed a high number of unusual responses,” which he believed was 12 either due to confusion, difficulty with comprehension, lack of effort, or an effort to 13 “overemphasize symptomology.” (T at 348). Dr. Maibaum opined that Plaintiff 14 answered in a manner “more consistent with stereotypes and common 15 misconceptions about typical psychiatric patient symptomatology.” (T at 348). He 16 interpreted Plaintiff’s test scores as indicative of “severe overrepresentation of 17 distress.” (T at 350). Dr. Maibaum believed that Plaintiff was “letting out a cry for 18 help” and needed “effective coping skills” to deal with his pain, anxiety, and 19 depression. (T at 350). 20 12 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB In September of 2009, Plaintiff was evaluated by Dr. Bruce Rubenstein and 1 2 Dr. Donna Alvarado in connection with a workers’ compensation claim. Dr. 3 Rubenstein and Dr. Alvarado performed psychological testing and concluded that 4 Plaintiff was “exaggerating symptoms and complaints.” (T at 319). They assigned a 5 Global Assessment of Functioning (“GAF”) score2 of 55 (T at 325), which is 6 indicative of moderate symptoms or difficulty in social, occupational or educational 7 functioning. Metcalfe v. Astrue, No. EDCV 07-1039, 2008 US. Dist. LEXIS 83095, 8 at *9 (Cal. CD Sep’t 29, 2008). 9 In August of 2010, Dr. Raymond Yee performed a psychiatric consultative 10 examination. Dr. Yee diagnosed adjustment disorder with depressive and anxiety 11 features and assigned a GAF of 60 (T at 393), which is indicative of moderate 12 symptoms. Dr. Yee opined that Plaintiff could perform simple and repetitive tasks, 13 as well as detailed and complex tasks, accept instructions from supervisors, interact 14 with co-workers and the public, perform work activities on a consistent basis 15 without special or additional instruction, maintain regular attendance in the 16 workplace, complete a normal workday/workweek without interruptions from 17 psychiatric conditions, and deal with usual workplace stress. (T at 393-94). 18 2 “A GAF score is a rough estimate of an individual's psychological, social, and occupational 19 functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 13 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 The ALJ also noted evidence in the record to the effect that Plaintiff could 2 watch soccer games on television and play card games, which conflicted with the 3 notion that his concentration was severely impaired. (T at 27). 4 The ALJ acted within her discretion in determining that the overall record, 5 including Dr. Maibaum’s clinical findings, the evaluation of Dr. Rubenstein and Dr. 6 Alvarado, Plaintiff’s activities, and Dr. Yee’s consultative examination provided a 7 basis for discounting Dr. Maibaum’s extremely restrictive opinion. 8 Plaintiff urges an alternative interpretation of the evidence. To that end, 9 Plaintiff notes that in July of 2009, Dr. C. Carrera completed a form for the 10 California Employment Development Department, in which he diagnosed major 11 depressive disorder (single episode) and opined that Plaintiff would not able to 12 return to his regular/customary work until July of 2010. (T at 463). The ALJ did not 13 address this form, which Plaintiff cites as an error requiring remand. 14 However, there is sufficient evidence in the record to sustain the ALJ’s 15 decision notwithstanding this error. Dr. Carrera did not provide any clinical findings 16 to support his assessment and did not give a detailed review of Plaintiff’s functional 17 limitations. The ALJ is not obliged to accept a treating source opinion that is “brief, 18 conclusory and inadequately supported by clinical findings.” Lingenfelter v. Astrue, 19 504 F.3d 1028, 1044-45 (9th Cir. 2007) (citing Thomas v. Barnhart, 278 F.3d 947, 20 14 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 957 (9th Cir. 2002)). Moreover, Dr. Yee’s assessment, which was supported by 2 detailed findings, was rendered in August of 2010, was supportive of the ALJ’s 3 conclusion that Plaintiff’s mental health symptoms began to improve during 4 June/July of 2009 (right around the time Dr. Carrera completed the form), when 5 Plaintiff began receiving mental health treatment. (T at 26, 390). 6 Plaintiff also points to an assessment by Dr. Susan Strivers completed in 7 October of 2008. Dr. Stivers performed an initial evaluation and diagnosed 8 adjustment disorder with depressed mood and generalized anxiety disorder. (T at 9 296). She assigned a GAF of 55, which indicates moderate symptoms. (T at 296). 10 She reported that Plaintiff had “serious symptoms of depression and anxiety” that 11 needed to be “addressed and alleviated” if he was to return to the workforce. (T at 12 297-98). Dr. Stivers opined that Plaintiff could return to “a previous, and perhaps 13 more effective, level of functioning” if he was to receive mental health treatment. (T 14 at 298). The ALJ also did not address Dr. Stivers’s opinion. However, Dr. Stivers 15 examined Plaintiff in October of 2008, a year prior to the alleged onset of disability. 16 (T at 282). Moreover, the ALJ included limitations in the RFC related to Plaintiff’s 17 mental health (i.e. simple, repetitive tasks; no more than frequent interaction with 18 supervisors, co-workers and the public). (T at 24). Lastly, on a fundamental level, 19 20 15 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 the ALJ reached the same conclusion as Dr. Stivers – namely, that mental health 2 treatment would be (and was) helpful in controlling Plaintiff’s symptoms. (T at 26). In light of the foregoing, this Court finds no reversible error in the ALJ’s 3 4 decision to discount Dr. Maibaum’s assessment. 5 2. 6 In January of 2009, Dr. Nikta Andalib, Plaintiff’s chiropractor, completed a 7 Progress Report, in which she opined that Plaintiff could return to modified work, 8 with no lifting/pushing/pulling greater than 25-30 pounds and no walking more than 9 1-2 hours without a 5 minute rest. (T at 459). Dr. Andalib Dr. Andalib noted the same 10 limitations in Progress Reports completed in February and April of 2009. (T at 457- 11 58). 12 Plaintiff points out (correctly) that the ALJ did not specifically state how 13 much weight she afforded Dr. Andalib’s opinion. However, the ALJ discussed Dr. 14 Andalib’s assessment extensively and compared it unfavorably with other evidence 15 of record, providing sufficient support for the ALJ’s overall disability determination, 16 even if the ALJ erred in failing to expressly state how much weight she gave this 17 particular opinion. (T at 21, 26). 18 As a threshold matter, Dr. Andalib is a chiropractor, not a medical doctor. 19 Medical sources are divided into two categories: “acceptable” and “not acceptable.” 20 16 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 20 C.F.R. § 404.1502. Acceptable medical sources include licensed physicians and 2 psychologists. 20 C.F.R. § 404.1502. Medical sources classified as “not acceptable” 3 (also known as “other sources”) include nurse practitioners, therapists, licensed 4 clinical social workers, and chiropractors. SSR 06-03p. 5 acceptable medical source is given more weight than an “other source” opinion. 20 6 C.F.R. §§ 404.1527, 416.927. The ALJ only needs to give “germane reasons” 7 before discounting an “other source” opinion. Dodrill v. Shalala, 12 F.3d 915, 919 8 (9th Cir. 1993). Here, although the ALJ did not specifically state how much weight 9 she gave Dr. Andalib’s opinion, she certainly provided germane reasons for 10 The opinion of an discounting that opinion when formulating the RFC determination. 11 The ALJ noted that Plaintiff saw Dr. Andalib infrequently between 2008 and 12 2009 and it is unclear from the chiropractor’s treatment notes what treatment, if any, 13 she provided Plaintiff. (T at 26). Dr. Andalib’s opinion is also not supported by any 14 supporting findings or detailed explanation. In addition, the ALJ acted within her 15 discretion in affording greater weight to other opinions in the record. 16 In April of 2009, Dr. Roger Sohn, an examining orthopedic surgeon, 17 concluded that Plaintiff was limited to no repetitive kneeling or squatting, but found 18 no other limitations. (T at 444). He opined that Plaintiff did not need medical 19 20 17 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 treatment for his physical impairments, other than Motrin or Advil as needed. (T at 2 444). 3 In August of 2010, Dr. Fariba Vesali, an examining orthopedic surgeon, 4 conducted a comprehensive orthopedic evaluation. Dr. Vesali diagnosed morbid 5 obesity and chronic low back pain, but opined that Plaintiff’s condition did not 6 impose any limitations lasting more than 12 months. Dr. Vesali found that Plaintiff 7 could walk, stand, sit, and lift/carry with no limitations. (T at 398). 8 Plaintiff argues that the ALJ should have weighed the evidence differently and 9 resolved the conflict in favor of Dr. Andalib’s assessments, but it is the role of the 10 Commissioner, not this Court, to resolve conflicts in evidence. Magallanes v. 11 Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 U.S. at 400. If the 12 evidence supports more than one rational interpretation, this Court may not 13 substitute its judgment for that of the Commissioner. Allen v. Heckler, 749 F.2d 577, 14 579 (9th 1984). If there is substantial evidence to support the administrative 15 findings, or if there is conflicting evidence that will support a finding of either 16 disability or nondisability, the Commissioner’s finding is conclusive. Sprague v. 17 Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, the ALJ’s finding was 18 supported by substantial evidence and should be sustained. See Tackett v. Apfel, 180 19 F.3d 1094, 1098 (9th Cir. 1999)(holding that if evidence reasonably supports the 20 18 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 Commissioner’s decision, the reviewing court must uphold the decision and may not 2 substitute its own judgment). 3 B. Credibility 4 A claimant’s subjective complaints concerning his or her limitations are an 5 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 6 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 7 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 8 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 9 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 10 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 11 findings are insufficient: rather the ALJ must identify what testimony is not credible 12 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 13 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 14 However, subjective symptomatology by itself cannot be the basis for a 15 finding of disability. A claimant must present medical evidence or findings that the 16 existence of an underlying condition could reasonably be expected to produce the 17 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 18 § 404.1529(b), 416.929; SSR 96-7p. 19 20 19 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 In this case, Plaintiff testified as follows: He was 34 years old at the time of 2 the hearing. (T at 40). He stopped working as a coating technician due to depression 3 and physical problems. (T at 43). In particular, lower back pain, shoulder pain, and 4 knee pain are serious problems. (T at 43). His back “gives out” at least twice a 5 month, rendering him unable to get out of bed. (T at 43). He has a constant 6 throbbing in his back, which travels down his right leg. (T at 43-44). Shoulder pain 7 is also an issue. (T at 44). As of the date of the hearing, Plaintiff was treating his 8 pain with Tylenol and ice, but he was not seeing any doctors because he lacked 9 health insurance. (T at 44-45). Constant knee pain is also a problem, causing falls 10 approximately twice a month. (T at 45-46). He also has headaches three to four days 11 a week, lasting one to two hours. (T at 46). Depression causes decreased motivation. 12 (T at 47). Anxiety prevents him from dealing with stress. (T at 47). He was 13 receiving therapy and medication to help with his psychological symptoms. (T at 14 48). He has low tolerance for everyday situations and does not believe he could 15 handle work stress. (T at 50-51). Difficulty with focus is also an issue. (T at 51). He 16 cannot pay attention to a TV show. (T at 52). 17 The ALJ concluded that Plaintiff had established a foundation for his basic 18 symptoms, but found that Plaintiff’s testimony regarding the nature and extent of his 19 impairments was not fully credible. (T at 25). The ALJ’s decision was supported by 20 20 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 substantial evidence and consistent with applicable law. The ALJ reviewed the 2 medical record in detail and found little diagnostic evidence to support Plaintiff’s 3 claims of disabling back and knee pain. (T at 25-26). The physical examinations 4 indicated generally normal motor strength, reflexes, and sensation in the upper and 5 lower extremities. (T at 26). 6 Dr. Maibum opined that Plaintiff answered in a manner “more consistent with 7 stereotypes and common misconceptions about typical psychiatric patient 8 symptomatology” and interpreted Plaintiff’s test scores as indicative of “severe 9 overrepresentation of distress,” which could be interpreted as a reluctant and polite 10 way to indicate malingering. (T at 348, 350). Dr. Rubenstein and Dr. Alvarado 11 performed psychological testing and concluded that Plaintiff was “exaggerating 12 symptoms and complaints.” (T at 319). Dr. Yee opined that Plaintiff could maintain 13 regular attendance in the workplace, complete a normal workday/workweek without 14 interruptions from psychiatric conditions, and deal with usual workplace stress. (T at 15 393-94). Dr. Sohn opined that Plaintiff did not need medical treatment for his 16 physical impairments, other than Motrin or Advil as needed. (T at 444). Dr. Vesali 17 opined that Plaintiff’s condition did not impose any limitations lasting more than 12 18 months and found that Plaintiff could walk, stand, sit, and lift/carry with no 19 limitations. (T at 398). 20 21 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 With regard to activities of daily living, Plaintiff reported that he played card 2 games, watched soccer matches on television, took care of his young children, 3 walked daily for up to an hour, visited family and his girlfriend, and attend family 4 gatherings. (T at 314-16). When assessing a claimant’s credibility, the ALJ may 5 employ “ordinary techniques of credibility evaluation.” Turner v. Comm’r of Soc. 6 Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)(quoting Smolen v. Chater, 80 F.3d 7 1273, 1284 (9th Cir. 1996)). Activities of daily living are a relevant consideration in 8 assessing a claimant’s credibility. See Rollins v. Massanari, 261 F.3d 853, 857 (9th 9 Cir. 2001). Although the claimant does not need to “vegetate in a dark room” to be 10 considered disabled, Cooper v. Brown, 815 F.2d 557, 561 (9th Cir. 1987), the ALJ 11 may discount a claimant’s testimony to the extent his or her activities of daily living 12 “contradict claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 13 1104, 1112-13 (9th Cir. 2011). 14 For the foregoing reasons, this Court finds that the ALJ’s credibility 15 determination withstands scrutiny under the applicable legal standard. 16 C. Right to a Full and Fair Hearing 17 Plaintiff contends that the ALJ improperly prohibited him from testifying 18 regarding his ear pain, difficulty hearing, and headaches. Thus, Plaintiff contends 19 that he was deprived of a full and fair hearing. 20 22 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB Plaintiff’s argument is lacking in merit. 1 When Plaintiff’s counsel asked 2 Plaintiff about ear pain, the ALJ made the following statement: “Ms. Lowenstein, he 3 didn’t file a claim about his ear. It was about his knee, his back and depression so 4 ….” (T at 46). Counsel responded: “Oh, I’m sorry. That was in the records. I’m 5 sorry.” (T at 46). The ALJ stated: “That’s not what he filed it on.” Counsel replied: 6 “Okay. That’s fine” and continued with the examination. (T at 46). 7 Plaintiff was permitted to testify regarding his headaches. (T at 46-47). 8 During the testimony, the ALJ noted that Plaintiff had not previously identified 9 headaches as a disabling impairment and suggested that Plaintiff’s counsel move on 10 to testimony regarding the impairments actually alleged. (T at 47). Plaintiff’s 11 counsel responded “Okay,” and began questioning Plaintiff about his depression. (T 12 at 47). 13 At no point did counsel object or explain to the ALJ why her line of 14 questioning was appropriate or relevant under the circumstances. Plaintiff’s counsel 15 apologized, appeared to agree with the ALJ, and moved on to other lines of inquiry. 16 As such, it cannot be said that the ALJ denied Plaintiff a full and fair hearing. 17 Moreover, and more importantly, Plaintiff has not demonstrated how he was 18 prejudiced. Plaintiff cites to various records referencing his ear pain, difficulty 19 hearing, and headaches. However, many of the records were generated prior to the 20 23 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 alleged onset date, and no medical provider opined that these conditions were 2 disabling. Moreover, the crux of Plaintiff’s argument is that he was denied the right 3 to offer additional testimony at his hearing regarding these complaints. However, 4 the ALJ already found Plaintiff’s testimony not fully credible, based (among other 5 things) on documented findings of symptom exaggeration. It is thus improbable that 6 additional testimony about impairments Plaintiff had not originally listed as 7 disabling would have affected the ALJ’s decision. In other words, even if the ALJ 8 erred in directing Plaintiff’s counsel to move on to other subjects (and if this Court 9 were to consider it error, as there is no per se rule limiting a claimant to the 10 impairments identified in application), Plaintiff has not shown how his lack of 11 testimony materially altered the outcome of the case. This Court finds no reversible 12 error as to the ALJ’s conduct of the administrative hearing and/or development of 13 the record. 14 D. Past Relevant Work 15 “Past relevant work” is work that was “done within the last 15 years, lasted 16 long enough for [the claimant] to learn to do it, and was substantial gainful activity.” 17 20 C.F.R. §§ 404.1565(a), 416.965(a). At step four of the sequential evaluation, the 18 ALJ makes a determination regarding the claimant’s residual functional capacity and 19 determines whether the claimant can perform his or her past relevant work. 20 24 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 Although claimant bears the burden of proof at this stage of the evaluation, the ALJ 2 must make factual findings to support his or her conclusion. See SSR 82-62. In 3 particular, the ALJ must compare the claimant’s RFC with the physical and mental 4 demands of the past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv) and 5 416.920(a)(4)(iv). In sum, the ALJ must determine whether the claimant’s RFC 6 would permit a return to his or her past job or occupation. The ALJ’s findings with 7 respect to RFC and the demands of the past relevant work must be based on 8 evidence in the record. See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). 9 The Regulations provide that a vocational report and the claimant’s testimony 10 should be consulted to define the claimant’s past relevant work as it was actually 11 performed. Id.; SSR 82-61, 82-41. 12 Here, the ALJ concluded that Plaintiff could perform his past relevant work as 13 a laborer and warehouse worker. (T at 28-29). This finding was based on the 14 testimony of Gregory Jones, a vocational expert, who testified that a hypothetical 15 claimant with Plaintiff’s RFC could perform Plaintiff’s past relevant work, both as 16 generally performed and as Plaintiff performed it. (T at 55-56). Plaintiff challenges 17 the step four finding by essentially restating his other arguments. Those arguments 18 fail for the reasons outlined above and, thus, Plaintiff’s step four challenge likewise 19 fails. The ALJ’s decision was supported by the medical evidence, including the 20 25 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 diagnostic evidence, opinions of examining medical providers, and Plaintiff’s 2 activities of daily living. 3 4 V. CONCLUSION 5 After carefully reviewing the administrative record, this Court finds 6 substantial evidence supports the Commissioner’s decision, including the objective 7 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 8 examined the record, afforded appropriate weight to the medical evidence, including 9 the assessments of the examining medical providers and the non-examining 10 consultants, and afforded the subjective claims of symptoms and limitations an 11 appropriate weight when rendering a decision that Plaintiff is not disabled. This 12 Court finds no reversible error and because substantial evidence supports the 13 Commissioner’s decision, the Commissioner is GRANTED summary judgment and 14 that Plaintiff’s motion for judgment summary judgment is DENIED. 15 16 17 18 19 20 VI. ORDERS IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner’s decision and DISMISSING this action, and it is further ORDERED that 26 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB 1 2 3 The Clerk of the Court shall file this Decision and Order and serve copies upon counsel for the parties. DATED this 7th day of March, 2016. 4 5 6 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 27 DECISION AND ORDER – LARA RAMIREZ v COLVIN 14-CV-00865-VEB

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