Ruben De Arcos Gama v. Carolyn W. Colvin, No. 2:2014cv04577 - Document 23 (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 The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case. (wr)

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Ruben De Arcos Gama v. Carolyn W. Colvin Doc. 23 O 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 Case No. 14-CV-04577 (VEB) 8 RUBEN DE ARCOS GAMA, 9 DECISION AND ORDER Plaintiff, 10 vs. 11 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 14 I. INTRODUCTION 15 In January of 2011, Plaintiff Ruben De Arcos Gama applied for Disability 16 Insurance Benefits under the Social Security Act. The Commissioner of Social 17 Security denied the application. Plaintiff, represented by Patricia McCabe, Esq., 18 19 20 1 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB Dockets.Justia.com 1 commenced this action seeking judicial review of the Commissioner’s denial of 2 benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 3 The parties consented to the jurisdiction of a United States Magistrate Judge. 4 (Docket No. 9, 10, 21, 22). On March 7, 2016, this case was referred to the 5 undersigned pursuant to General Order 05-07. (Docket No. 20). 6 7 II. BACKGROUND 8 Plaintiff applied for benefits on January 24, 2011, alleging disability 9 beginning January 16, 2009. (T at 59).1 The application was denied initially and on 10 reconsideration. Plaintiff requested a hearing before an Administrative Law Judge 11 (“ALJ”). On October 9, 2012, a hearing was held before ALJ Elizabeth R. Lishner. 12 (T at 47). Plaintiff appeared with an attorney and testified through an interpreter. (T 13 at 52-70). The ALJ also received testimony from Ronald Hatakeyama, a vocational 14 expert (T at 75-77), and Olga De Arcos, Plaintiff’s wife, who testified as a lay 15 witness. (T at 71-75). 16 17 On November 8, 2012, the ALJ issued a written decision denying the application for benefits. (T at 20-39). The ALJ’s decision became the 18 19 20 1 Citations to (“T”) refer to the administrative record at Docket No. 14. 2 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 Commissioner’s final decision on February 28, 2014, when the Appeals Council 2 denied Plaintiff’s request for review. (T at 9-13). 3 On June 13, 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 December 19, 2014. (Docket No. 13). The 6 parties filed a Joint Stipulation on May 19, 2015. (Docket No. 19). 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 must 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 – DE ARCOS v COLVIN 14-CV-04577-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 – DE ARCOS v COLVIN 14-CV-04577-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 – DE ARCOS v COLVIN 14-CV-04577-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 – DE ARCOS v COLVIN 14-CV-04577-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 January 16, 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 28). The ALJ found that Plaintiff’s left leg amputation, diabetes, 17 depression, and anxiety were “severe” impairments under the Act. (Tr. 28). 18 19 20 7 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-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 29). 4 The ALJ determined that Plaintiff retained the residual functional capacity 5 (“RFC”) to perform medium work as defined in 20 CFR § 416.967 (c), with the 6 following limitations: standing/walking 4 hours in an 8-hour workday; sitting 6 7 hours in an 8-hour workday; no pushing/pulling with the lower extremities; frequent 8 stair and ramp climbing, with other postural activities occasionally; and frequent 9 performance of detailed/complex tasks. (T at 30). The ALJ found that Plaintiff could perform his past relevant work as an 10 11 industrial truck (forklift) driver. (T at 34). 12 As such, the ALJ found that Plaintiff was not entitled to benefits under the 13 Social Security Act from January 16, 2009 (the alleged onset date) through 14 November 8, 2012 (the date of the ALJ’s decision). (T at 35). As noted above, the 15 ALJ’s decision became the Commissioner’s final decision when the Appeals 16 Council denied Plaintiff’s request for review. (T at 9-13). 17 D. Disputed Issues 18 As set forth in the parties’ Joint Stipulation (Docket No. 19), Plaintiff offers 19 five (5) arguments in support of his claim that the Commissioner’s decision should 20 8 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 be reversed. First, he contends that the ALJ did not properly weigh the medical 2 opinion evidence. Second, Plaintiff challenges the ALJ’s credibility determination. 3 Third, Plaintiff contends that the ALJ erred by failing to consider his back and lower 4 extremity pain as a severe impairment. Fourth, he argues that the ALJ’s RFC 5 determination was flawed because it did not consider the combined effects of his 6 impairments. Fifth, Plaintiff challenges the hypothetical question that formed the 7 basis of the ALJ’s step four analysis. This Court will address each argument in turn. 8 9 10 IV. ANALYSIS A. Medical Opinion Evidence 11 In disability proceedings, a treating physician’s opinion carries more weight 12 than an examining physician’s opinion, and an examining physician’s opinion is 13 given more weight than that of a non-examining physician. Benecke v. Barnhart, 14 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 15 1995). If the treating or examining physician’s opinions are not contradicted, they 16 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 17 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 18 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 19 1035, 1043 (9th Cir. 1995). Historically, the courts have recognized conflicting 20 9 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 medical evidence, and/or the absence of regular medical treatment during the alleged 2 period of disability, and/or the lack of medical support for doctors’ reports based 3 substantially on a claimant’s subjective complaints of pain, as specific, legitimate 4 reasons for disregarding a treating or examining physician’s opinion. Flaten v. 5 Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 6 An ALJ satisfies the “substantial evidence” requirement by “setting out a 7 detailed and thorough summary of the facts and conflicting clinical evidence, stating 8 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 9 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 10 “The ALJ must do more than state conclusions. He must set forth his own 11 interpretations and explain why they, rather than the doctors,’ are correct.” Id. 12 In this case, the medical record contains extensive records of Plaintiff’s 13 treatment history with several physicians and therapists. In sum, these records 14 indicate that Plaintiff consistently presented with complaints of chronic low back 15 and right lower extremity pain; difficulties with a poorly-fitting prosthesis on his left 16 lower extremity; poorly controlled diabetes; diabetic dyslipidemia; depression; and 17 anxiety. 18 The ALJ discussed these records and concluded that they established severe 19 impairments. (T at 29). However, the ALJ found that the treating record (1) did not 20 10 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 “reveal significant abnormalities” in Plaintiff’s knees, (2) indicated good pain 2 control from physical therapy, (3) suggested good control of psychiatric symptoms 3 with medication, and (4) indicated generally stable treatment of diabetes. (T at 33). 4 Plaintiff disputes these findings, offering alternative interpretations of the 5 treating record. However, it is the role of the Commissioner, not this Court, to 6 resolve conflicts in evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 7 1989); Richardson, 402 U.S. at 400. If the evidence supports more than one rational 8 interpretation, this Court may not substitute its judgment for that of the 9 Commissioner. Allen v. Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial 10 evidence to support the administrative findings, or if there is conflicting evidence 11 that will support a finding of either disability or nondisability, the Commissioner’s 12 finding is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 13 Here, the ALJ’s finding was supported by substantial evidence and must therefore be 14 sustained. 15 Diagnostic testing indicated mild degenerative changes in Plaintiff’s spine; a 16 knee x-ray was unremarkable, showing normal alignment, no evidence of joint 17 effusive, and “no significant degenerative disease.” (T at 341-42, 366-68). Although 18 Plaintiff’s diabetes was not always well-controlled, there was no evidence of organ 19 damage. (T at 32, 274-75, 316). The ALJ noted evidence of medication non- 20 11 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 compliance, which impacted the management of Plaintiff’s diabetes. (T at 32). The 2 ALJ cited evidence indicating that Plaintiff’s diabetes was generally stable and 3 uncomplicated when he was compliant with his medications. (T at 29, 32, 275, 286, 4 293, 299, 507, 520). Formal psychological testing did not reveal any significant 5 cognitive deficits. (T at 29, 319-24). The ALJ cited evidence indicating that 6 Plaintiff’s depression and anxiety improved with medication. (T at 33, 281-82). 7 The ALJ recognized that Plaintiff’s partial amputation2 impacted his ability to 8 work to some degree, but also noted that Plaintiff worked for over 30 years after that 9 surgery, including 20 years as a forklift operator. (T at 33). The ALJ also 10 recognized that Plaintiff had difficulty with his prosthetic in 2011, due to changes in 11 Plaintiff’s weight, and that a new prosthetic was ordered. (T at 33, 329-67, 394, 430- 12 31, 506-507). 13 Dr. Steven Strode, a non-examining State Agency review consultant, 14 performed a review in March of 2011. Dr. Strode opined that Plaintiff could lift 50 15 pounds occasionally, 25 pounds frequently, stand/walk for about 6 hours in an 8- 16 hour workday, and sit for about 6 hours in an 8-hour workday. (T at 310). 17 18 19 Plaintiff suffered a childhood accident, which resulted in a left leg, below the knee, amputation between the proximal tibia and fibula. (T at 28). 20 12 2 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 Dr. R.E. Brooks, a non-examining State Agency review consultant, performed 2 a psychiatric review in October of 2011 and concluded that Plaintiff had no 3 restriction in activities of daily living, no difficulties in maintaining social 4 functioning, and no difficulties in maintaining concentration, persistence, or pace. (T 5 at 486). 6 State Agency review physicians are highly qualified experts and their 7 opinions, if supported by other record evidence, may constitute substantial evidence 8 sufficient to support a decision to discount a treating physician’s opinion. See Saelee 9 v. Chater, 94 F.3d 520, 522 (9th Cir. 1996); see also 20 CFR § 404.1527 10 (f)(2)(i)(“State agency medical and psychological consultants and other program 11 physicians, psychologists, and other medical specialists are highly qualified 12 physicians, psychologists, and other medical specialists who are also experts in 13 Social Security disability evaluation.”). 14 In June of 2011, Dr. William Goldsmith completed a consultative psychiatric 15 evaluation. Dr. Goldsmith found Plaintiff cooperative and cheerful, with organized 16 thought process, appropriate orientation, and intact memory. (T at 321). He noted 17 that Plaintiff’s concentration did not appear impaired and he had adequate judgment 18 and normal intelligence. (T at 322). Dr. Goldsmith assigned a Global Assessment of 19 20 13 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 Functioning (“GAF”)3 score of 60 (T at 322), which is indicative of moderate 2 symptoms or difficulty in social, occupational or educational functioning. Metcalfe 3 v. Astrue, No. EDCV 07-1039, 2008 US. Dist. LEXIS 83095, at *9 (Cal. CD Sep’t 4 29, 2008). 5 Plaintiff’s mental health issues. (T at 322-23). Dr. Goldsmith assessed no work-related limitations arising from 6 Dr. Goldsmith opined that Plaintiff did not have any psychiatric impairment, 7 although he noted that Plaintiff was “understandably troubled about his 8 unemployment.” (T at 322). The ALJ gave some weight to Dr. Goldsmith’s 9 assessment, but also credited the hearing testimony concerning Plaintiff’s depression 10 and anxiety, concluding that his ability to consistently perform complex/detailed 11 tasks would be somewhat limited. (T at 34). 12 In sum, this Court find that the ALJ’s decision is supported by substantial 13 evidence (including the treatment notes, diagnostic testing, State Agency review 14 physician’s assessments, and consultative examiner’s evaluation) and must therefore 15 be sustained. Plaintiff’s treating physicians documented his complaints and 16 treatment history, but did not assess his functional, work-related limitations. The 17 ALJ adequately addressed the treating physicians’ notes and the overall evidentiary 18 record reasonably supports the ALJ’s decision. See Tackett v. Apfel, 180 F.3d 1094, 19 3 20 “A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 14 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 1098 (9th Cir. 1999)(holding that if evidence reasonably supports the 2 Commissioner’s decision, the reviewing court must uphold the decision and may not 3 substitute its own judgment). 4 B. Credibility 5 A claimant’s subjective complaints concerning his or her limitations are an 6 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 7 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 8 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 9 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 10 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 11 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 12 findings are insufficient: rather the ALJ must identify what testimony is not credible 13 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 14 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 15 However, subjective symptomatology by itself cannot be the basis for a 16 finding of disability. A claimant must present medical evidence or findings that the 17 existence of an underlying condition could reasonably be expected to produce the 18 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 19 § 404.1529(b), 416.929; SSR 96-7p. 20 15 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 In this case, Plaintiff testified as follows: He was 50 years old in October of 2 2012 (when the administrative hearing was held). (T at 52). He stopped working in 3 January of 2009, when he was laid off. (T at 52). 4 unemployment benefits and continued looking for work. (T at 52-53). Leg pain 5 prevents him from standing for extended periods. Back pain also limits his ability to 6 work. (T at 53). He had issues with replacing his prosthesis, which resulted in 7 ongoing pain in his leg, back, and hips. (T at 55-56). These problems prevent him 8 from working. (T at 57). 9 prolonged periods. (T at 58). He can sit for 30-60 minutes. (T at 58). He has sleep 10 problems and cannot perform household chores. (T at 58). His wife manages hid 11 medications. (T at 60-61). He has pain in his hands, which he described as “almost 12 like tingling.” (T at 63). He has experienced falls. (T at 64). Physical therapy did 13 not provide symptom relief. (T at 66-67). Thereafter he received Pain prevents Plaintiff from sitting or standing for 14 The ALJ concluded that Plaintiff’s medically determinable impairments could 15 reasonably be expected to cause the alleged symptoms, but that his statements 16 concerning the intensity, persistence, and limiting effects of the symptoms were not 17 fully credible. (T at 31). 18 19 20 This Court finds the ALJ’s credibility determination supported by substantial evidence and consistent with applicable law. First, Plaintiff’s testimony was 16 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 contradicted by the objective medical evidence. As summarized above, diagnostic 2 testing indicated mild degenerative changes in Plaintiff’s spine and a knee x-ray was 3 unremarkable, showing normal alignment, no evidence of joint effusive, and “no 4 significant degenerative disease.” (T at 341-42, 366-68). Plaintiff’s diabetes was 5 generally stable and uncomplicated when he was compliant with his medications. (T 6 at 29, 32, 275, 286, 293, 299, 507, 520). Formal psychological testing did not reveal 7 any significant cognitive deficits. (T at 29, 319-24). Treatment notes indicated that 8 Plaintiff’s depression and anxiety improved with medication. (T at 33, 281-82). Dr. 9 Strode opined that Plaintiff could lift 50 pounds occasionally, 25 pounds frequently, 10 stand/walk for about 6 hours in an 8-hour workday, and sit for about 6 hours in an 8- 11 hour workday. (T at 310). Dr. Brooks concluded that Plaintiff had no restriction in 12 activities of daily living, no difficulties in maintaining social functioning, and no 13 difficulties in maintaining concentration, persistence, or pace. (T at 486). 14 Goldsmith assessed no work-related limitations arising from Plaintiff’s mental 15 health issues. (T at 322-23). Dr. 16 Although lack of supporting medical evidence cannot form the sole basis for 17 discounting pain testimony, it is a factor the ALJ may consider when analyzing 18 credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). In other words, an 19 ALJ may properly discount subjective complaints where, as here, they are 20 17 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 contradicted by medical records. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 2 1155, 1161 (9th Cir. 2008); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 3 2002). 4 Second, the ALJ noted that Plaintiff had a generally conservative course of 5 treatment for both his physical and psychological impairments. (T at 32-33). 6 “Evidence of ‘conservative treatment’ is sufficient to discount a claimant’s 7 testimony regarding the severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 8 751 (9th Cir. 2007). 9 Third, the ALJ cited evidence that Plaintiff stopped working due to being laid 10 off and continued looking for work thereafter. (T at 31). The fact that a claimant 11 stopped working for reasons other than the alleged impairments is a valid reason for 12 the ALJ to discount the claimant’s credibility. Bruton v. Massanari, 268 F.3d 824, 13 828 (9th Cir. 2001). 14 Fourth, the ALJ reasonably relied upon Plaintiff’s activities of daily living, 15 which she found inconsistent with Plaintiff’s claims of disabling limitations. (T at 16 31). In particular, Plaintiff occasionally accompanied his grandchildren to school 17 and the park, helped with household tasks, drives, handled finances, and engaged in 18 social activities. (T at 31-32, 189, 230-38). 19 20 18 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 When assessing a claimant’s credibility, the ALJ may employ “ordinary 2 techniques of credibility evaluation.” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 3 1224 n.3 (9th Cir. 2010)(quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 4 1996)). Activities of daily living are a relevant consideration in assessing a 5 claimant’s credibility. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 6 Although the claimant need not “vegetate in a dark room” to be considered disabled, 7 Cooper v. Brown, 815 F.2d 557, 561 (9th Cir. 1987), the ALJ may discount a 8 claimant’s testimony to the extent his or her activities of daily living “contradict 9 claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1112- 10 13 (9th Cir. 2011). 11 In light of the above, this Court finds that the ALJ’s credibility determination 12 must be sustained. See Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 13 1999)(“[Q]uestions of credibility and resolutions of conflicts in the testimony are 14 functions solely of the [Commissioner].”). 15 Plaintiff also argues that the ALJ did not adequately consider the testimony of 16 his wife. “Testimony by a lay witness provides an important source of information 17 about a claimant’s impairments, and an ALJ can reject it only by giving specific 18 reasons germane to each witness.” Regennitter v. Comm’r, 166 F.3d 1294, 1298 (9th 19 Cir. 1999). However, the ALJ did consider, and afforded some weight to, Mrs. 20 19 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 DeArcos testimony about Plaintiff’s mood difficulties, relying on that testimony to 2 find that Plaintiff was limited to some degree by his mental health impairments. (T 3 at 34). The ALJ also noted Mrs. DeArcos’s testimony that Plaintiff performed a 4 variety of daily activities on various occasions and could concentrate and manage 5 finances. (T at 31, 189, 230-38). 6 consideration of Mrs. DeArco’s lay testimony. 7 C. This Court finds no error in the ALJ’s Step Two Analysis 8 At step two of the sequential evaluation process, the ALJ must determine 9 whether the claimant has a “severe” impairment. See 20 C.F.R. §§ 404.1520(c), 10 416.920(c). The fact that a claimant has been diagnosed with and treated for a 11 medically determinable impairment does not necessarily mean the impairment is 12 “severe,” as defined by the Social Security Regulations. See, e.g., Fair v. Bowen, 13 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 14 1985). To establish severity, the evidence must show the diagnosed impairment 15 significantly limits a claimant's physical or mental ability to do basic work activities 16 for at least 12 consecutive months. 20 C.F.R. § 416.920(c). 17 The step two analysis is a screening device designed to dispose of de minimis 18 complaints. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “[A]n impairment 19 is found not severe . . . when medical evidence establishes only a slight abnormality 20 20 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 or a combination of slight abnormalities which would have no more than a minimal 2 effect on an individual’s ability to work.” Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 3 1988) (quoting SSR 85-28). The claimant bears the burden of proof at this stage and 4 the “severity requirement cannot be satisfied when medical evidence shows that the 5 person has the ability to perform basic work activities, as required in most jobs.” 6 SSR 85-28. Basic work activities include: “walking, standing, sitting, lifting, 7 pushing, pulling, reaching, carrying, or handling; seeing, hearing, speaking; 8 understanding, carrying out and remembering simple instructions; responding 9 appropriately to supervision, coworkers, and usual work situation.” Id. 10 Here, the ALJ found that Plaintiff’s left leg amputation, diabetes, depression, 11 and anxiety were “severe” impairments under the Act. (Tr. 28). Plaintiff argues that 12 his progressive back and lower extremity pain should also have been considered a 13 severe impairment. 14 prosthesis, which in turn is related to his left leg amputation (which the ALJ found to 15 be a severe impairment). (T at 50-51, 55-56, 250, 394). 16 considered Plaintiff’s complaints of back and lower extremity pain and found that he 17 was limited to medium work with some postural limitations. (T at 28-30). There is 18 no indication that classifying Plaintiff’s back and lower extremity pain as a separate, 19 severe impairment, as opposed to a symptom of the left leg amputation (which was 20 21 However, Plaintiff’s pain appeared to be related to his The ALJ carefully DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 found to be severe) would have made any material difference in the outcome. This 2 is particularly so where, as here, the ALJ considered all of the Plaintiff’s 3 impairments and complaints and the RFC determination is supported by treatment 4 records, as well as assessments of State Agency review physicians and a consultative 5 examiner. 6 In sum, this Court finds no error with regard to the ALJ’s step two analysis. 7 The step two analysis was resolved in Plaintiff’s favor, i.e. the ALJ concluded that 8 Plaintiff had severe impairments and proceeded with the sequential analysis. See 9 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Even assuming arguendo that 10 the ALJ should have considered Plaintiff’s back and lower extremity pain as a 11 separate severe impairment, any error in that regard was harmless because the ALJ 12 considered that pain when determining Plaintiff’s RFC. See Lewis v. Astrue, 498 13 F.3d 909, 911 (9th Cir. 2007). 14 D. RFC Determination 15 An ALJ’s assessment of the claimant’s residual functional capacity (“RFC”) 16 must be upheld if the ALJ has applied the proper legal standard and substantial 17 evidence in the record supports the decision. Bayliss v. Barnhart, 427 F.3d 1211, 18 1217 (9th Cir. 2005). The ALJ must consider all the medical evidence in the record 19 and “explain in [her] decision the weight given to . . . [the] opinions from treating 20 22 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 sources, nontreating sources, and other nonexamining sources.” 20 C.F.R. § 2 404.1527(e)(2)(ii); see also § 404.1545(a)(1). 3 In determining the claimant’s RFC, the ALJ considers those limitations for 4 which there is support in the record and need not consider properly rejected evidence 5 or subjective complaints. See Bayliss, 427 F.3d at 1217; see also Batson v. Comm'r 6 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (holding that the ALJ was 7 not required to incorporate into RFC findings from treating-physician opinions that 8 were “permissibly discounted”). 9 Here, the ALJ determined that Plaintiff retained the RFC to perform medium 10 work as defined in 20 CFR § 416.967 (c), with the following limitations: 11 standing/walking 4 hours in an 8-hour workday; sitting 6 hours in an 8-hour 12 workday; no pushing/pulling with the lower extremities; frequent stair and ramp 13 climbing, with other postural activities occasionally; and frequent performance of 14 detailed/complex tasks. (T at 30). 15 This Court finds the ALJ’s decision supported by substantial evidence. As 16 discussed above, objective and diagnostic findings were generally unremarkable. (T 17 at 29, 33, 341-42, 367). Plaintiff worked for more than 30 years with his prosthetic 18 left leg and continued looking for work after being laid off. (T at 284, 336, 376). Dr. 19 Strode opined that Plaintiff could lift 50 pounds occasionally, 25 pounds frequently, 20 23 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 stand/walk for about 6 hours in an 8-hour workday, and sit for about 6 hours in an 8- 2 hour workday. (T at 310). Dr. Brooks concluded that Plaintiff had no restriction in 3 activities of daily living, no difficulties in maintaining social functioning, and no 4 difficulties in maintaining concentration, persistence, or pace. (T at 486). 5 Goldsmith assessed no work-related limitations arising from Plaintiff’s mental 6 health issues. (T at 322-23). Dr. 7 The ALJ credited, in part, the evidence of impairment, concluding that 8 Plaintiff had some exertional, postural, and non-exertional limitations. (T at 30). 9 Contrary to Plaintiff’s contention, the ALJ’s decision, read in whole, demonstrates 10 that the ALJ considered all of Plaintiff’s impairments, both singly and in 11 combination. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that 12 if evidence reasonably supports the Commissioner’s decision, the reviewing court 13 must uphold the decision and may not substitute its own judgment). 14 E. Hypothetical Question 15 At step five of the sequential evaluation, the burden is on the Commissioner to 16 show that (1) the claimant can perform other substantial gainful activity and (2) a 17 “significant number of jobs exist in the national economy” which the claimant can 18 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot 19 return to his previous job, the Commissioner must identify specific jobs existing in 20 24 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 substantial numbers in the national economy that the claimant can perform. See 2 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). The Commissioner may 3 carry this burden by “eliciting the testimony of a vocational expert in response to a 4 hypothetical that sets out all the limitations and restrictions of the claimant.” 5 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). The ALJ's depiction of the 6 claimant's disability must be accurate, detailed, and supported by the medical record. 7 Gamer v. Secretary of Health and Human Servs., 815 F.2d 1275, 1279 (9th 8 Cir.1987). “If the assumptions in the hypothetical are not supported by the record, 9 the opinion of the vocational expert that claimant has a residual working capacity 10 has no evidentiary value.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 11 In this case, the ALJ’s step four analysis was based on the vocational expert’s 12 response to a hypothetical question that incorporated the limitations set forth in the 13 RFC determination. (T at 76). Plaintiff’s past relevant work was performed from a 14 seated position, requiring lifting less than 10 pounds, required constant reaching, and 15 occasional postural activities. (T at 50-52, 67, 173). Plaintiff essentially restates his 16 prior arguments, contending that the ALJ should have included additional, more 17 significant limitations in the hypothetical question to the vocation expert. However, 18 an ALJ is not obliged to accept as true limitations alleged by Plaintiff and may 19 decline to include such limitations in the vocational expert’s hypothetical if they are 20 25 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB 1 not supported by sufficient evidence. See Martinez v. Heckler, 807 F.2d 771 (9th 2 Cir. 1986); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Hall 3 v. Colvin, No. CV-13-0043, 2014 U.S. Dist. LEXIS 45006, at *24-25 (E.D. Wash. 4 Mar. 31, 2014)(“A claimant fails to establish that a Step 5 determination is flawed 5 by simply restating argument that the ALJ improperly discounted certain evidence, 6 when the record demonstrates the evidence was properly rejected.”)(citing Stubbs- 7 Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). 8 9 V. CONCLUSION 10 After carefully reviewing the administrative record, this Court finds 11 substantial evidence supports the Commissioner’s decision, including the objective 12 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 13 examined the record, afforded appropriate weight to the medical evidence, including 14 the assessments of the examining medical providers and the non-examining 15 consultants, and afforded the subjective claims of symptoms and limitations an 16 appropriate weight when rendering a decision that Plaintiff is not disabled. This 17 Court 18 Commissioner’s decision. finds no reversible error and substantial evidence supports 19 20 26 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB the 1 VI. ORDERS 2 IT IS THEREFORE ORDERED that: 3 Judgment be entered AFFIRMING the Commissioner’s decision; and 4 The Clerk of the Court shall file this Decision and Order, serve copies upon 5 counsel for the parties, and CLOSE this case. 6 DATED this 26th day of April, 2016, 7 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 27 DECISION AND ORDER – DE ARCOS v COLVIN 14-CV-04577-VEB

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