Maria Anne Rubio v. Carolyn W. Colvin, No. 2:2014cv06230 - Document 19 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision is affirmed and the case is dismissed with prejudice. IT IS SO ORDERED. (See document for further details.) (sbou)
Download PDF
<![CDATA[
Maria Anne Rubio v. Carolyn W. Colvin Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MARIA ANNE RUBIO, 11 12 13 Plaintiff, v. 14 CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 14-6230-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration (“the Agency”), denying her application for Disability 20 Insurance Benefits (“DIB”). 21 Judge (“ALJ”) erred when she: (1) concluded that Plaintiff’s 22 fibromyalgia and chronic fatigue were not severe impairments; 23 (2) failed to consider all of Plaintiff’s impairments singly and in 24 combination; and (3) discredited hers and her husband’s testimony. 25 For the following reasons, the Court finds that the ALJ did not err 26 and affirms her decision. She claims that the Administrative Law 27 28 Dockets.Justia.com 1 II. 2 SUMMARY OF PROCEEDINGS In January 2011, Plaintiff applied for DIB, alleging that she had 3 been disabled since December 2008, due to neurological problems, 4 fibromyalgia, Parkinson’s disease (maybe), diabetes, blurry vision, 5 depression, and “high temp.” 6 Her application was denied initially and on reconsideration and she 7 requested and was granted a hearing before an ALJ. 8 85-89, 91-93.) 9 testified at the hearing. (Administrative Record (“AR”) 127, 162.) (AR 68, 72, 76-81, In August 2012, she appeared with counsel and (AR 37-67.) (AR 18-30.) Thereafter, the ALJ issued a 10 decision denying benefits. 11 Appeals Council, which denied review almost two years later. 12 11, 15-16.) 15 III. A. (AR 1- Plaintiff then filed the instant action. 13 14 Plaintiff appealed to the ANALYSIS The Credibility Determination Plaintiff testified that she had been suffering from constant 16 pain in her shoulders, neck, arms, and side since 2007. 17 She also testified that she experienced severe fatigue--to such an 18 extent that she would sleep until four or five in the afternoon–-from 19 2009 through March 2012, when she “woke up” after doing holistic 20 meditation. 21 sleeping until 11:00 a.m. 22 needed to rest for 45 minutes after doing any sort of activity, like 23 making lunch. 24 bladder every 45 minutes and that she would “leak” a little when she 25 felt the urgency to urinate. 26 pain prevented her from walking further than the corner of her block 27 and standing for longer than a couple of minutes and that she used a 28 walker to get around. (AR 51-52.) (AR 46, 57.) Plaintiff explained that she was currently (AR 52.) (AR 53, 55.) According to Plaintiff, she She claimed that she needed to empty her (AR 55-56.) (AR 58-59.) 2 She also testified that her 1 The ALJ found that Plaintiff’s obesity, history of right shoulder 2 surgery, and asthma were severe impairments that could reasonably be 3 expected to cause her alleged symptoms but concluded that she was not 4 entirely credible. 5 the ALJ gave in support of the credibility finding were inadequate. 6 For the following reasons, the Court disagrees. 7 (AR 23, 28.) Plaintiff claims that the reasons ALJs are tasked with judging a claimant’s credibility. 8 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 9 rely on ordinary credibility techniques. Andrews In doing so, they can Smolen v. Chater, 80 F.3d 10 1273, 1284 (9th Cir. 1996). 11 malingering, however, they can only reject a claimant’s testimony for 12 specific, clear, and convincing reasons that are supported by 13 substantial evidence in the record. 14 1014-15 (9th Cir. 2014). 15 Where there is no evidence of Garrison v. Colvin, 759 F.3d 995, The ALJ discounted Plaintiff’s testimony that she was practically 16 unable to stand and walk because it was contradicted by the medical 17 evidence. 18 April 2009, October 2009, April 2010, and April 2011, the doctors 19 reported that Plaintiff’s gait was steady and intact and that she 20 could walk without an assistive device. 21 In fact, in April 2010, consultative examiner Michael Wallack 22 described her as “extremely agile” and noted that she moved about in a 23 “brisk” manner.1 24 in which Plaintiff’s doctor declined to put her on disability because, (AR 28.) The ALJ pointed out that, in examinations in (AR 942.) (AR 28, 210, 217, 942, 1060.) The ALJ also pointed to a July 2011 note 25 26 27 28 1 At the April 2011 examination, Dr. Wallack reported Plaintiff moved slowly, with her legs far apart, but opined gait appeared to be forced. (AR 1058.) In both April 2010 2011, however, he found that she could stand or walk for at hours. (AR 945, 1061.) 3 that that her and April least six 1 among other things, there were conflicting diagnoses for her 2 rheumatological ailments. 3 (AR 248.) The ALJ was entitled to consider the medical evidence in 4 evaluating Plaintiff’s testimony, see, e.g., Osenbrock v. Apfel, 240 5 F.3d 1157, 1165-66 (9th Cir. 2001) (upholding ALJ’s credibility 6 determination based in part on the fact that the medical evaluations 7 revealed little evidence of the disabling abnormality alleged by 8 claimant), and, as she noted, it contradicted Plaintiff’s testimony. 9 The ALJ also questioned Plaintiff’s testimony because it was 10 inconsistent with other statements she had made. 11 is a legitimate reason for disputing a claimant’s testimony and is 12 partially supported by the evidence. 13 Plaintiff claimed in her disability application that she stopped 14 working because of her conditions. 15 examining psychiatrist that she was laid off because of a conflict 16 with her boss. 17 that she stopped working because she sent an inappropriate email to a 18 colleague. 19 hearing that she was fired for missing too much work to attend 20 doctors’ appointments. 21 these inconsistencies when evaluating Plaintiff’s testimony.2 (AR 162, 764.) (AR 1052.) (AR 28.) This, too, Smolen, 80 F.3d at 1284. (AR 162.) But she told an She later told the same psychiatrist Plaintiff testified at the administrative (AR 41-42.) The ALJ was entitled to consider 22 23 24 25 26 27 28 2 The ALJ noted other inconsistent statements. (AR 28.) For example, in March 2010, Plaintiff reported that she was able to drive. (AR 763.) In June 2011, she said that she could not drive “at all.” (AR 177.) Given the passage of time, however, things could have changed and, therefore, these statements may not actually evidence untruthfulness. Similarly, Plaintiff’s general testimony that between 2009 and 2012 she slept all day (AR 42, 51-52), was not necessarily inconsistent with statements she made to her doctors that she sometimes exercised or cooked. (AR 525, 941, 1293.) In August 2008, for example, Plaintiff told Dr. Wonil Lee that she felt tired all the 4 1 The ALJ noted that Plaintiff reported taking a trip to Israel, 2 Egypt, and Jordan in May and/or June 2011, which the ALJ found to be 3 inconsistent with Plaintiff’s claimed disabilities. 4 1272.) 5 that if Plaintiff was capable of traveling from California to the 6 Middle East for vacation she was not as limited as she claimed to be. 7 See, e.g., Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) 8 (holding ALJ properly discounted claimant’s testimony of pain and 9 limitation partly on basis of travel abroad). The Court agrees. (AR 28-29, 1271, It was reasonable for the ALJ to conclude 10 The ALJ found that Plaintiff’s daily activities, which included 11 making lunch and dinner occasionally, taking her daughter to martial 12 arts twice a week, and going to the doctor regularly, showed that she 13 was not as limited as she claimed to be. 14 that the limited nature of these activities combined with the fact 15 that Plaintiff claimed that she needed to rest for 45 minutes after 16 completing them does not undermine her credibility. 17 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (rejecting ALJ’s reliance on 18 claimant’s daily activities where they did not contradict his 19 testimony or show that he could transfer these abilities to a work 20 setting). 21 (AR 28.) The Court finds See Orn v. Finally, the ALJ found that Plaintiff received only conservative 22 treatment for her allegedly disabling conditions. 23 this is a legitimate reason for questioning a claimant’s testimony, 24 see Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (noting (AR 29.) Though 25 26 27 28 time and had difficulty getting up in the morning, but also reported keeping physically active doing yoga and exercises. (AR 779.) These statements did not necessarily undermine Plaintiff’s subsequent testimony. 5 1 conservative treatment, including use of only over-the-counter 2 medication to control pain, supported discounting claimant’s testimony 3 regarding pain), it is not supported by substantial evidence. 4 focused on records from January and February 2011 to reach this 5 conclusion. 6 only medication--Cymbalta, Lyrica, and Aspirin--for Plaintiff’s 7 complaints of fatigue and weakness. 8 ALJ noted, Plaintiff was complaining about a number of other ailments, 9 including left-sided radiculopathy, bladder suspension, leiomyomata 10 (uterine fibroids), an ankle sprain, a tear in her shoulder tendon, 11 and asthma, over an extended period of time. 12 underwent right shoulder repair in February 2010, bladder surgery in 13 May 2010, and uterine surgery in December 2010, as well as a 14 hysterectomy and removal of the Fallopian tube in September 2011. 15 26, 967-68, 977-79, 1136-37, 1318.) 16 received epidural injections in her shoulder and back. 17 Court does not consider these treatments as conservative. 18 Plaintiff’s treatment for fibromyalgia and chronic fatigue by Dr. 19 Jain, there is no evidence in the record that suggests that 20 Plaintiff’s treatment should have been more aggressive. 21 reasons, the Court rejects the ALJ’s finding that Plaintiff’s 22 treatment was conservative and that that conservative treatment 23 indicated that she was not as impaired as she claimed.3 The ALJ These records showed that neurologist Ravin Jain provided (AR 29, 1086-1106.) Yet, as the (AR 23, 26.) Plaintiff (AR She also testified that she (AR 57.) The As for For these 24 25 26 27 28 3 The ALJ may have believed that Plaintiff’s treatment was conservative based on Dr. Jain’s note in January 2011 that “conservative therapy” had been recommended for Plaintiff’s chiari malformation (AR 1088), a condition in which brain tissue extends into the spinal canal, potentially affecting balance and coordination. See http://www.mayoclinic.org/diseases-conditions/chiari-malformation/basi cs/symptoms/con-20031115. 6 1 In the end, the Court concludes that, of the ALJ’s five reasons 2 for rejecting Plaintiff’s testimony, three are clear and convincing 3 and two are not. 4 that are supported by the record are enough to uphold the ALJ’s 5 finding. 6 (9th Cir. 2008) (holding error is harmless if substantial evidence 7 remains to support the ALJ’s credibility conclusion). 8 reason, it is affirmed. 9 On balance, the Court finds that the three reasons See Carmickle v. Comm'r, Soc. Sec., 533 F.3d 1155, 1162-63 For that Plaintiff also contends that the ALJ erred in rejecting her 10 husband’s testimony. 11 greatly deteriorated since 2008. 12 this claim. 13 He testified that his wife’s condition had (AR 62-65.) There is no merit to ALJs are required to assess the credibility of the lay witnesses 14 and may reject lay witness testimony for reasons that are germane to 15 the witness. 16 The ALJ rejected the husband’s testimony in part because his 17 allegations were inconsistent with the medical evidence. 18 This is a germane reason for rejecting lay testimony, see Bayliss v. 19 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005), and it is supported by 20 substantial evidence in the record. 21 essentially, that he knew that Plaintiff was in pain because she said 22 so and because it took her a long time to walk from place to place. 23 That testimony was contradicted, however, by the consultative 24 examiner’s April 2010 report that Plaintiff could move unassisted in a 25 brisk fashion and evidently without pain. 26 ALJ’s rejection of the husband’s testimony will be affirmed. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 27 28 7 (AR 29.) Plaintiff’s husband testified, (AR 942.) As such, the 1 2 B. The Residual Functional Capacity Determination The ALJ concluded that Plaintiff had the residual functional 3 capacity to perform a full range of medium work but had to avoid 4 concentrated exposure to dust, fumes, and chemicals. 5 Plaintiff contends that the ALJ erred by failing to consider all of 6 her impairments, both severe and non-severe, including her pain, 7 restless leg syndrome, incontinence, uterine complaints, chronic 8 fatigue, and hearing loss. 9 that the ALJ’s failure to include these ailments in the residual 10 (Joint Stip. at 9-12.) (AR 25.) The Court finds functional capacity finding was not error. 11 In formulating the residual functional capacity, the ALJ need not 12 perform a function-by-function analysis; rather, she need only include 13 those limitations that are supported by objective evidence in the 14 record. 15 impairment does not by itself constitute evidence of a functional 16 limitation. 17 1219, 1228-29 (9th Cir. 2009) (rejecting claimant’s argument that a 18 severe impairment “must correspond to limitations on a claimant’s 19 ability to perform basic work activities.”). 20 Bayliss, 427 F.3d at 1217. The mere existence of an See, e.g., Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d Plaintiff contends that the ALJ erred when she found at step two 21 that Plaintiff’s fibromyalgia and chronic fatigue were not severe 22 impairments because no doctor had ever evaluated her for them or 23 confirmed that she suffered from them. 24 that the ALJ erred in not including these conditions at step two. 25 (Joint Stip. at 7.) 26 harmless. 27 The Court finds that it was. 28 leads to decreased sensation in her hands and contributes to pain and The Agency appears to concede The issue that remains is whether the error was See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Plaintiff alleges that her fibromyalgia 8 1 weakness in standing and walking. (Joint Stip. at 2, 7.) The ALJ 2 considered whether Plaintiff could stand, walk, and grip and, relying 3 on the opinion of Dr. Wallack, concluded that she could. 4 942-46, 1058-62.) 5 evidence to support the ALJ’s finding. 6 (holding independent clinical findings of examining doctor constitute 7 substantial evidence). 8 those claimed ailments in the residual functional capacity 9 determination. (AR 25-29, Dr. Wallack’s opinion constituted substantial See Orn, 495 F.3d at 632 The ALJ was justified then in not including See Bayliss, 427 F.3d at 1217. Likewise, even 10 assuming that the ALJ erred in finding that Plaintiff’s chronic 11 fatigue was not a severe impairment, there was no objective evidence 12 in the record to support Plaintiff’s allegation that she needed to 13 take additional breaks or take long naps throughout the day. 14 the ALJ was entitled to disregard it. Id.4 15 As such, The ALJ considered Plaintiff’s osteoarthritis and degenerative 16 spine disease, which, Plaintiff alleged, caused her constant pain in 17 her back and side and limited her ability to stand and walk. 18 Stip. at 9; AR 57-59.) 19 lumbar spine X-rays in 2008 showed only slight abnormalities (AR 207, 20 964), but that EMG and NCV studies in 2009 and 2010 showed moderate 21 radiculopathy in the cervical and lumbar spine. 22 Nevertheless, an April 2010 MRI of Plaintiff’s lumbar spine was 23 unremarkable and February 2011 EMG/NCV studies revealed no evidence of (Joint The ALJ noted that a cervical spine MRI and (AR 26-27, 262, 292.) 24 25 26 27 28 4 In April 2009, Dr. Fawaz Al Faisal treated Plaintiff for her sleep disorder. His neurological examination was unremarkable, however, and his assessment of “excessive daytime somnolence, rule out narcolepsy” appears to have been based entirely on Plaintiff’s allegations. (AR 610-12.) A May 2009 polysomnogram revealed decreased sleep efficiency but no evidence of sleep apnea or narcolepsy. (AR 396.) 9 1 lumbar or cervical radiculopathy, myopathy, or neuropathy. (AR 27, 2 319-20, 423, 426.) 3 Wallack’s opinion that Plaintiff would be able to stand or walk for up 4 to six hours a day. As a result, the ALJ did not err in relying on Dr. 5 The ALJ did not expressly consider whether Plaintiff’s restless 6 leg syndrome, uterine issues, or hearing impairment would impose any 7 functional limitations. 8 required to consider all of the evidence, she was not required to 9 address each piece of it in her decision. As a general matter, though the ALJ was See Howard ex rel. Wolff v. 10 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (holding ALJ is not 11 required to discuss every piece of evidence so long as the decision is 12 supported by substantial evidence). 13 that, even assuming that the ALJ should have discussed these claimed 14 impairments, any error was harmless. 15 she suffered from any particular restrictions or limitations as a 16 result of restless leg syndrome or her uterine surgery. 17 Horizon opined that restless leg syndrome exacerbated Plaintiff’s 18 fibromyalgia (AR 1285), but he did not explain how that translated 19 into functional restrictions. 20 September 2011 hysterectomy, her gynecologist reported in February 21 2012 that she had made a full recovery. 22 Plaintiff complained at the August 2012 hearing that she continued to 23 suffer from bleeding, she testified that she treated it with 24 injections every three months and did not claim that it limited her 25 ability to work. 26 In any case, the Court finds Plaintiff did not allege that Dr. Arash Furthermore, following Plaintiff’s (AR 1318.) Although (AR 44, 46.) As for Plaintiff’s hearing loss, the record contains a September 27 2011 letter from Dr. Warren Line, who found that Plaintiff had 28 moderate hearing loss in both ears, which was not disabling. 10 (AR 1 1312.) 2 reference Plaintiff having any problem hearing, nor did she raise the 3 issue at any time. 4 in failing to include hearing issues in the residual functional 5 capacity finding. 6 The transcript from the administrative hearing does not Thus, the Court cannot conclude that the ALJ erred Finally, Plaintiff argues that the ALJ failed to consider 7 limitations imposed by her incontinence. 8 Here, again, the Court sides with the Agency. 9 at the time of the administrative hearing, has suffered from (Joint Stip. at 10-11.) Plaintiff, who was 48 10 incontinence since she was 17 years old. 11 fact, she held down jobs throughout her lifetime, including jobs in 12 human resources from 1992-2008. 13 concedes, her incontinence played no role in her being fired from her 14 last job as the human resources manager in 2008. 15 (AR 953-54.) (AR 136-48, 186-87.) Despite this As she (AR 41-42.) After applying for benefits, Plaintiff was interviewed by Agency 16 staff and asked what conditions limited her ability to work. 17 162.) 18 initially denied her application, she moved for reconsideration, 19 explaining why she disagreed with the Agency’s decision denying her 20 application. 21 91.) 22 and testified that she senses an urgency to urinate every 45 minutes 23 to an hour and experiences a “leak or two” in connection with this 24 urgency. 25 that a hypothetical person with the same education and work history as 26 Plaintiff could perform her past work in human resources. 27 When given an opportunity to question the vocational expert about She did not list incontinence. (AR 91.) (AR 162.) (AR After the Agency Again, she did not raise incontinence. (AR Plaintiff appeared with counsel at the administrative hearing (AR 55-56.) Thereafter, the vocational expert testified 28 11 (AR 66.) 1 Plaintiff’s ability to perform these jobs, counsel elected not to ask 2 about Plaintiff’s incontinence. 3 (AR 66-67.) Plaintiff now argues that the ALJ erred when she failed to 4 consider how Plaintiff’s incontinence impacted her residual functional 5 capacity. 6 record suggests that Plaintiff’s incontinence did not interfere with 7 her work ability to work for 31 years nor did Plaintiff claim that it 8 did. 9 residual functional capacity assessment. The Court does not find this argument persuasive. The Thus, the ALJ did not err in failing to include it in the This is true even in light 10 of the fact that Plaintiff testified that her condition had worsened 11 in recent years. 12 testimony, finding it to be less than credible, and there was minimal 13 objective evidence to support her claim of worsening problems with 14 incontinence. 15 has not convinced this Court that her need to rush to the bathroom 16 once every 45-60 minutes to relieve herself would interfere with her 17 ability to be a human resources manager and nothing she has presented 18 here suggests that it would. (AR 55.) Second, even assuming that her testimony was true, she IV. 19 20 First, the ALJ questioned Plaintiff’s CONCLUSION For these reasons, the Agency’s decision is affirmed and the case 21 is dismissed with prejudice. 22 IT IS SO ORDERED. 23 DATE: March 16, 2016 24 25 _______________________________ PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 26 27 28 S:\PJW\Cases-Social Security\RUBIO, M 6230\Memo Opinion and Order.wpd 12
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
