Della Richmond v. Carolyn W. Colvin, No. 2:2014cv04729 - Document 21 (C.D. Cal. 2015)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is affirmed. (See Order for complete details) (afe)
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Della Richmond v. Carolyn W. Colvin Doc. 21 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 11 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 12 13 14 15 16 17 18 DELLA RICHMOND, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. CV 14-4729-AS MEMORANDUM OPINION 19 20 PROCEEDINGS 21 22 On June 23, 2014, Plaintiff filed a Complaint seeking review of the 23 denial of her applications for Disability Insurance Benefits and 24 Supplemental Security Income. (Docket Entry No. 3). The parties have 25 consented to proceed before the undersigned United States Magistrate 26 Judge. (Docket Entry Nos. 9-10). On November 12, 2014, Defendant filed 27 an Answer along with the Administrative Record (“AR”). 28 Nos. 12-13). (Docket Entry The parties filed a Joint Position Statement (“Joint Dockets.Justia.com 1 Stip.”) On March 30, 2015, setting forth their respective positions 2 regarding Plaintiff’s claims. (Docket Entry No. 19). 3 4 The Court has taken this matter under submission without oral 5 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures In Social 6 Security Case,” filed June 24, 2014 (Docket Entry No. 7). 7 8 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 9 10 On November 16, 2010, Plaintiff, formerly employed as an in-home 11 care provider (see AR 20, 142), filed applications for Disability 12 Insurance Benefits and Social Security Income, alleging a disability 13 since February 28, 2010. (See AR 107-19). On July 3, 2012, Plaintiff, 14 who was not represented by counsel, appeared and testified before 15 Administrative Law Judge (“ALJ”) Robert Eisman. (See AR 26-57). 16 Plaintiff’s father, Jay Richmond, and vocational expert Howard Goldfarb 17 also testified. (Id.). On August 3, 2012, the ALJ issued a decision 18 denying Plaintiff’s applications. (See AR 11-25). After determining 19 that Plaintiff had severe impairments –- “chronic kidney disease, anemia 20 and obesity” (AR 18)1 --, the ALJ found that Plaintiff had the residual 21 functional capacity (“RFC”)2 to perform sedentary work3 with the 22 1 23 18). 24 25 26 27 28 The ALJ found that hypertension was a nonsevere impairment. (AR 2 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 3 Sedentary work “involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary (continued...) 2 1 following restrictions: standing and walking no more than two hours; 2 sitting 6 hours in an 8-hour workday with normal breaks; no climbing 3 ladders, ropes or scaffolds; no more than occasional climbing of ramps 4 or stairs, balancing, stooping, kneeling, crouching or crawling; and no 5 frequent or concentrated exposure to hazardous machinery, unprotected 6 heights or other high risk, hazardous or unsafe conditions. (Id.). The 7 ALJ found that Plaintiff was capable of performing her past relevant 8 work as a home attendant. (See AR 20). Alternatively, the ALJ found 9 that, in addition to her past relevant work, Plaintiff was also able to 10 perform other jobs existing in significant numbers in the national 11 economy, such as a table worker, marker or jewelry preparer. (AR 21). 12 Accordingly the ALJ found that Plaintiff was not disabled within the 13 meaning of the Social Security Act. (See AR 22). 14 15 Plaintiff requested that the Appeals Council review the ALJ’s 16 decision. (AR 9). The request was denied on April 17, 2014. (AR 1-3). 17 The ALJ’s decision then became the final decision of the Commissioner, 18 allowing this Court to review the decision. See 42 U.S.C. §§ 405(g), 19 1383(c). 20 21 PLAINTIFF’S CONTENTIONS 22 23 Plaintiff alleges that the ALJ erred in failing to (1) consider and 24 make credibility findings regarding Plaintiff’s testimony and the lay 25 witness testimony of her father; and (2) consider Plaintiff’s severe 26 27 28 3 (...continued) criteria are met.” 20 C.F.R. § 404.1567(a). 3 1 impairment of obesity in the listing and RFC determination. (See Joint 2 Stip. at 4). 3 4 DISCUSSION 5 6 A. The 7 Plaintiff’s Father ALJ Properly Assessed The Credibility of Plaintiff and 8 9 Plaintiff asserts that the ALJ failed to articulate legally 10 sufficient reasons to find her testimony not credible and offered “no 11 articulation why he rejects [her father’s] testimony which do not allow 12 for work activity.” (Joint Stip. at 4-9). 13 14 An ALJ's assessment of a claimant's credibility is entitled to 15 “great weight.” See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 16 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). “[T]he ALJ 17 is not required to believe every allegation of disabling pain, or else 18 disability benefits would be available for the asking, a result plainly 19 contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 F.3d 1104, 20 1112 (9th Cir. 2012). In order to determine whether a claimant's 21 testimony is credible, the ALJ engages in a two-step analysis. Garrison 22 v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 23 24 First, the claimant “must produce objective medical evidence of an 25 underlying impairment ‘which could reasonably be expected to produce the 26 pain or other symptoms alleged.’” Bunnell v. Sullivan, 947 F.2d 341, 27 344 (9th Cir. 1991) (quoting 42 U.S.C. § 423(d)(5)(A)(1988)). In 28 producing evidence of the underlying impairment, “the claimant need not 4 1 produce objective medical evidence of the pain or fatigue itself, or the 2 severity thereof.” 3 1996). Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. Instead, the claimant “need only show that [the impairment] 4 could reasonably have caused some degree of the symptom.” Id. 5 6 Second, once the claimant has produced the requisite objective 7 medical evidence, the “ALJ may reject the claimant's testimony regarding 8 the severity of her symptoms.” Smolen, 80 F.3d at 1284. Absent 9 affirmative evidence of malingering, however, the ALJ may only reject a 10 plaintiff's testimony “by offering specific, clear and convincing 11 reasons for doing so.” Id. In assessing a claimant's alleged symptoms, 12 an ALJ may consider: “(1) ordinary techniques of credibility evaluation, 13 such as claimant's reputation for lying, prior inconsistent statements 14 concerning the symptoms, and other testimony by the claimant that 15 appears to be less than candid; (2) unexplained or inadequately 16 explained failure to seek treatment or to follow a prescribed course of 17 treatment; and (3) the claimant's daily activities.” Id. An ALJ may 18 also consider “the claimant's work record and observations of treating 19 and examining physicians and other third parties.” Id. 20 21 Lay witness testimony regarding a claimant's symptoms is competent 22 evidence that the ALJ must consider unless he “expressly determines to 23 disregard such testimony and gives reasons germane to each witness for 24 doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). However, 25 an error in addressing lay witness testimony is harmless, if a reviewing 26 court “can confidently conclude that no reasonable ALJ, when fully 27 crediting the testimony, could have reached a different disability 28 determination.” Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006); 5 1 Molina, 674 F.3d at 1122 (explaining that if an ALJ's failure to discuss 2 testimony favorable to the claimant was “inconsequential to the ultimate 3 nondisability determination in the context of the record as a whole” 4 then the failure is harmless error). 5 6 Plaintiff provided the following testimony at the administrative 7 hearing: 8 9 Her last job was performing in-home care for her brother. She 10 lives with her father and her 17-year old son. (See AR 30-33). 11 12 She has kidney disease but has not started dialysis treatment. 13 (AR 33-34). 14 the 15 blood work done every three weeks. 16 to pain (“real bad pain”) (AR 35), in her lower back and leg. 17 (AR 36). She is taking medication for blood pressure, and itching on her face and stomach. (AR 34-35). She has She is unable to work due 18 19 She has not been able to get an x-ray of her back as 20 recommended by her primary doctor because her “medicare froze” 21 and she had to wait to see her doctor. (AR 37). 22 to find a new primary doctor. (AR 38). 23 for a blood transfusion at St. Francis hospital. (AR 37) She is trying She was hospitalized 24 25 She spends her day sleeping; the medication she takes makes 26 her sleepy and feel weak. (AR 40-41). 27 household and personal chores like cooking, laundry, shopping, 28 and housework. (AR 40-41). 6 She Her son helps her with tries to do pushups, 1 stretches, but cannot “do a lot of walking right now.” (AR 42- 2 43). 3 4 Plaintiff’s father testified that Plaintiff was unable to keep up 5 with what had to be done, “she was slow with it, and she was having 6 problems while she was working” and had pain in her arms, legs and back. 7 (AR 45). He also stated that Plaintiff seemed to “slow down in her 8 thinking, and maneuvering around, or doing, understanding things.” (AR 9 46). “I noticed a change in her,” (AR 46), and that Plaintiff needed 10 help with “[p]ersonal things like showers and bathing and stuff like 11 that.” (AR 47-48). 12 13 Plaintiff explained that she needed help with bathing because the 14 pain her leg prevented her from making it into the shower. (AR 48). 15 16 After summarizing Plaintiff’s testimony and 17 Plaintiff’s father (see AR 19),4 the ALJ wrote: 18 testimony, the objective medical record 19 debilitating impairments and symptoms.” the of “Notwithstanding the fails (AR 19). testimony to substantiate The ALJ noted that, 20 “treatment records show largely conservative treatment for [Plaintiff’s] 21 kidney condition.” (Id.). The ALJ then referenced Plaintiff’s treatment 22 records which reflected that Plaintiff’s kidney disease remained at 23 24 25 26 27 28 4 With respect to Plaintiff’s testimony, the ALJ wrote: “The claimant reported severe kidney problems, low back pain, weakness, and medication induced drowsiness. She testified that her daily activities were markedly limited and that most daily chores were preformed by her son . . . Her father . . . also testified that the claimant had pain affecting her arms, legs and back, which precluded work activity. He also reported impaired thinking and understanding due to her symptoms. . . He testified that the claimant required extensive help with activities including showering and bathing.” (AR 19). 7 1 stage 4, despite two episodic revisions to stage 5 in 2011 (see AR 19, 2 citing AR 198, 251), Plaintiff generally reported feeling “ok” with no 3 complaints and largely unremarkable physical findings and no significant 4 abnormalities. (AR 19). 5 6 In determining Plaintiff’s RFC, the ALJ gave great weight to the 7 consultative internal evaluation report prepared by Dr. Soheila 8 Benrazavi who concluded that Plaintiff was limited to sedentary 9 exertion. (AR 19-20; 225). 10 11 Although Plaintiff contends that the ALJ failed to articulate any 12 reasons for rejecting the testimony of Plaintiff’s father, the Court 13 finds that, when read in context, the ALJ appears to have considered the 14 testimony of both Plaintiff and her father in determining that their 15 statements about the intensity, persistence and limiting effects of 16 Plaintiff’s symptoms were not credible to the extent that such testimony 17 was not supported by the objective medical evidence and the conservative 18 treatment Plaintiff received. (AR 19-20). Moreover, The ALJ did not 19 reject Plaintiff’s subjective complaints testimony entirely. Rather, 20 the ALJ accepted Plaintiff’s complaints of weakness and somnolence and 21 incorporated them into the sedentary RFC determination. (See AR 20). 22 23 Even if the ALJ failed to discredit the testimony of Plaintiff’s 24 father on the same grounds as the Plaintiff’s testimony, any error in 25 failing to comment on the statements made by Plaintiff’s father is 26 harmless because the ALJ would not have reached a different disability 27 determination if the testimony had been considered. Stout v. Comm’r, 454 28 F.3d 1050, 1056 (9th Cir. 2006). Plaintiff’s father’s statements 8 1 essentially reiterated Plaintiff's subjective complaints, (compare AR 2 30-43, with AR 44-46), and did not offer any new evidence or insight to 3 establish disability. Therefore, no reasonable ALJ would have reached 4 a more favorable determination had the statements been properly 5 addressed. Stout, supra, 454 F.3d at 1056; see also Valentine v. Comm'r 6 of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (an ALJ's clear 7 and convincing reasons for discounting a claimant's testimony are 8 equally germane to reject similar testimony by a lay witness). 9 10 Although a claimant's credibility “cannot be rejected on the sole 11 ground that it is not fully corroborated by objective medical evidence, 12 the medical evidence is still a relevant factor . . .” 13 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Rollins v. Lack of supporting 14 objective medical evidence is a key consideration for the ALJ in 15 evaluating credibility. See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4) 16 (in determining disability, an ALJ must evaluate a claimant's statements 17 about the intensity, persistence and limiting effects of her symptoms 18 “in relation to the objective medical evidence and other evidence”). 19 Here, the ALJ’s finding that the objective medical evidence did not 20 support the testimony of Plaintiff and Plaintiff’s father regarding 21 Plaintiff’s symptoms and functional limitations was supported by 22 substantial evidence. As the ALJ noted, although there were signs of 23 slow deterioration of Plaintiff’s kidney condition, laboratory testing 24 revealed that there were only two occasions on which Plaintiff’s kidney 25 functioning reached a stage five level, and that otherwise her “kidney 26 condition remained stable at a stage 4 level.” (See AR 19). On March 27 9, 2011, Dr. Soheila Benrazavi, the internal medicine consultative 28 examiner, found that Plaintiff’s physical and neurological examinations 9 1 were generally within normal limits. (See AR. 223-25). The ALJ noted 2 that although Plaintiff complained of low back pain, Dr. Benrazavi’s 3 “examination of [Plaintiff’s] lumbar spine was completely normal.” (AR 4 19; see also AR 224). Based on Plaintiff’s severe anemia and chronic 5 kidney failure, Dr. Benrazavi determined that Plaintiff could do 6 sedentary work with no other limitations. (See AR 225). The ALJ 7 accepted Dr. Benrazavi’s findings and rejected the opinion of a state 8 agency physician who issued a report, dated May 20, 2011, finding that 9 a less restrictive RFC of light work was appropriate. (See AR 227-31). 10 Finally, an abdominal ultrasound on May 1, 2012, which included 11 Petitioner’s kidney, revealed no significant abnormalities. 12 256). (See AR Thus, the ALJ’s finding that the objective medical evidence did 13 not support the testimony of Plaintiff and Plaintiff’s father regarding 14 Plaintiff’s functional limitations was supported by substantial evidence 15 and was a clear and convincing reason to discredit the testimony. 16 17 The ALJ also found that the testimony given by Plaintiff and her 18 father regarding Plaintiff’s limitations was not supported by the 19 “largely conservative” treatment Plaintiff received for her kidney 20 condition. (See AR 19). As the ALJ noted, although a December 30, 2010 21 medical note stated that Plaintiff “will need access soon for dialysis” 22 (see AR 203), there was no evidence in the record that Plaintiff’s 23 “kidney functioning had deteriorated to the extent that dialysis was 24 prescribed and provided to [Plaintiff].” (See AR 19; see also AR 198, 25 251-52, no mention of dialysis in medical records after December 2010). 26 Further, at the administrative hearing (nearly one and one-half years) 27 later, Plaintiff confirmed that she had not received dialysis (see AR 28 34). (See AR 19). Although the record reveals that Plaintiff had a 10 1 blood transfusion on December 29, 2011 due to “severe anemia [that was] 2 attributed largely to menorrhagia as well as [Plaintiff’s] kidney 3 disease,” Plaintiff’s treatment plan generally consisted of continuing 4 with her present medication regimen. (See AR 198, 203-10, 251-52). 5 Moreover, even after her December 2011 blood transfusion, Plaintiff 6 reported that she felt okay and had no complaints. (See AR 198). 7 Indeed, most of Plaintiff’s nephrology treatment records “generally 8 show[ed] that [she] felt ‘ok’ with no [new] complaints and reflect[ed] 9 largely unremarkable physical findings,” an indication that Plaintiff’s 10 kidney condition was being adequately treated and not the cause of any 11 functional limitations. (See AR 19; see also AR 198, 203-10, 251-52). 12 13 Thus, the ALJ properly discredited the testimony of Plaintiff and 14 Plaintiff’s father regarding Plaintiff’s symptoms and functional 15 limitations because Plaintiff’s medical appointments were generally 16 routine follow-up appointments and her kidney condition was adequately 17 treated with relatively conservative treatment. 18 convincing reason to reject such testimony. This was a clear and Parra v. Astrue, 481 F.3d 19 742, 750–51 (9th Cir. 2007) (conservative treatment can diminish a 20 claimant's credibility regarding the severity of an impairment); see 21 also Warre v. Comm'r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006) 22 (impairments that can be controlled effectively with medication are not 23 disabling). 24 25 Because the ALJ provided clear and convincing reasons for his 26 adverse credibility finding, the Court defers to the ALJ's credibility 27 determination. See Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 28 11 1 2002) (“If the ALJ's credibility finding is supported by substantial 2 evidence in the record, we may not engage in second guessing.”). 3 4 B. The ALJ Properly Considered Plaintiff’s Obesity 5 6 Plaintiff contends that although the ALJ found Plaintiff’s obesity 7 to be a severe impairment, he did not consider whether Plaintiff had a 8 listing level impairment or whether the obesity had an impact on her 9 RFC. (Joint Stip. at 13-15). 10 11 Generally, when there is evidence of obesity as an impairment, the 12 ALJ must determine its effect upon the claimant's other impairments, 13 ability to work, and general health. Celaya v. Halter, 332 F.3d 1177, 14 1182 (9th Cir. 2003); see also SSR 02–1p, 2002 WL 34686281, at *3-7 15 (Sept. 12, 2001) (requiring ALJ to consider effects of obesity 16 throughout sequential evaluation process). An ALJ must “evaluate each 17 case based on the information in the case record,” as obesity may or may 18 not increase 19 impairments. the severity or functional limitations of other See SSR 02–1p, 2002 WL 34686281, at *6. 20 21 22 issue Here, the record shows that, although Plaintiff did not raise the of her weight, the ALJ nonetheless examined the record, 23 acknowledged Plaintiff’s obesity, and determined that it was a severe 24 impairment. (See AR 18, 19). In addition, Plaintiff’s treating 25 physician, Dr. Samia Khwaja, noted Plaintiff’s obesity, but did not 26 opine that her obesity exacerbated her other impairments or caused any 27 functional limitations that would exceed an RFC for sedentary work. 28 (See AR 203-04, 205-06, 211). Rather, Dr. Khwaja noted Plaintiff's 12 1 weight and recommended that she lose weight, diet and/or exercise. (See 2 AR 206, 212-14, 216-17). Moreover, Plaintiff did not present any 3 testimony or other evidence indicating that her obesity impaired her 4 ability to work. Because Plaintiff did not provide “any evidence of 5 functional limitations due to obesity which would have impacted the 6 ALJ’s analysis,” the ALJ was not required to consider the effect of 7 Plaintiff's obesity in combination with her other impairments. See 8 Garcia v. Comm'r of Soc. Sec. Admin., 498 F. App'x 711, 712 (9th Cir. 9 2012); Burch v. Barnhart, 400 F.3d 676, 684 (9th Cir. 2005) (ALJ did not 10 err in failing to consider obesity at step three because claimant did 11 not point to any evidence in the record of any functional limitations 12 due to obesity which would have impacted the ALJ's analysis, and only 13 evidence relating to obesity were “notes from doctors who observed 14 weight gain, indicated that [claimant] is obese, and recommended that 15 she participate in a medically supervised weight loss program.”); Burton 16 v. Astrue, 310 F. App'x 960, 961 n.1 (9th Cir. 2009) (ALJ did not err in 17 failing to consider adequately claimant's obesity when claimant does not 18 specify how his obesity limits his functional capacity or how it 19 exacerbates his currently existing condition). 20 21 Here, Dr. Benrazavi, the consultative examiner whose opinion the 22 ALJ gave great weight to in assessing Plaintiff's RFC, was cognizant of 23 Plaintiff’s height and weight, as well as her other claimed impairments 24 including her complaints of back pain, and nonetheless concluded that 25 Plaintiff retained the functional capacity to perform work at a 26 sedentary exertional level with no restrictions. (See AR 221-25); see 27 Burch, 400 F.3d at 684; Garcia, 498 F. App'x at 712 (ALJ did not fail to 28 13 1 consider obesity when he recognized claimant's obesity as severe and 2 relied on functional limits suggested by doctors who recognized it). 3 4 Because there is nothing in the record to indicate that Plaintiff's 5 obesity, alone or in combination with other impairments, equaled a 6 Listing or resulted in any greater limitations than those reflected in 7 the RFC, the ALJ did not err in his consideration of Plaintiff's 8 obesity. 9 10 ORDER 11 12 13 For the foregoing reasons, the decision of the Commissioner is affirmed. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 DATED: November 5, 2015. 18 19 20 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 14
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