Axia Maribel Osorio Fuentes v. Nancy A. Berryhill, No. 2:2018cv06957 - Document 22 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. IT IS ORDERED that judgment shall beentered AFFIRMING the decision of the Commissioner. (See document for details.) (sbou)
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Axia Maribel Osorio Fuentes v. Nancy A. Berryhill Doc. 22 1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 AXIA MARIBEL O. F., 12 13 14 15 Case No. 2:18-cv-06957-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 Defendant. 16 17 18 I. 19 BACKGROUND 20 Plaintiff Axia Maribel O. F. (“Plaintiff”) applied for Social Security 21 disability benefits on September 29, 2015, alleging disability commencing April 22 14, 2015, due to diabetes and breast cancer.2 Administrative Record (“AR”) 186- 23 24 25 26 27 28 Effective November 17, 2017, Ms. Berryhill’s new title is “Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.” 1 Plaintiff initially claimed an onset date of July 1, 2012, the date when she stopped working. AR 186. She amended the onset date to April 2015 because “there are no medical records” from the earlier years. AR 37. She testified that she started to “feel bad” in 2010 due to diabetes, which is why she quit vocational 2 1 Dockets.Justia.com 1 96. On June 1, 2017, an Administrative Law Judge (“ALJ”) conducted a hearing at 2 which Plaintiff, who was represented by a non-attorney representative, appeared 3 and testified, as did a vocational expert (“VE”). AR 21, 34-58. On July 18, 2017, 4 the ALJ issued an unfavorable decision. AR 15-33. The ALJ found that Plaintiff 5 suffered from the medically determinable severe impairments of obesity; diabetes 6 mellitus; and malignant neoplasm of the right breast, status post mastectomy, 7 chemotherapy, and radiation therapy. AR 23. Despite these impairments, the ALJ 8 found that Plaintiff had a residual functional capacity (“RFC”) to perform light 9 work with a sit/stand option and additional postural limitations. AR 25. 10 Based on the RFC analysis and the VE’s testimony, the ALJ found that 11 Plaintiff could work as a laundry worker, ticket seller, or office helper. AR 27-28. 12 The ALJ concluded that Plaintiff was not disabled. AR 29. 13 II. 14 ISSUES PRESENTED 15 Issue One: Whether the ALJ satisfied his duty to develop the record. 16 Issue Two: Whether the ALJ erred in evaluating Plaintiff’s subjective 17 symptom testimony. (Dkt. 21, Joint Stipulation [“JS”] at 4.) 18 III. 19 DISCUSSION 20 21 ISSUE ONE: Development of the Record. Plaintiff alleges disability based on diabetes with peripheral neuropathy and 22 breast cancer treatment lasting more than 12 months with residual pain and 23 functional limitations. (JS at 5, citing AR 48.) Plaintiff contends that the ALJ did 24 not “fully and fairly develop the record by obtaining an opinion by an examining 25 or treating doctor as to [Plaintiff’s] limitations.” (Id.) 26 27 28 school. AR 40, 227. 2 1 2 1. The ALJ’s Duty to Develop the Record. It is Plaintiff’s burden to prove that she is disabled. Johnson v. Shalala, 60 3 F.3d 1428, 1432 (9th Cir. 1995). Nevertheless, the ALJ in a social security case 4 has an independent “special duty to fully and fairly develop the record and to 5 assure that the claimant’s interests are considered.” Smolen v. Chater, 80 F.3d 6 1273, 1288 (9th Cir. 1996). This duty extends to the represented as well as to the 7 unrepresented claimant. Id. 8 As part of this duty, the ALJ has an obligation to take reasonable steps to 9 ensure that issues and questions raised by medical evidence, particularly evidence 10 from treating physicians, are addressed so that the disability determination is fairly 11 made on a sufficient record of information, both favorable and unfavorable to the 12 claimant. See Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999); Cox v. 13 Califano, 587 F.2d 988, 991 (9th Cir. 1978). The ALJ’s duty to recontact a 14 treating physician arises when the evidence received from that physician is 15 inadequate to determine disability, contains a conflict or ambiguity, or is not based 16 on medically acceptable techniques. 20 C.F.R. §§ 404.1512(e), 416.912(e). In 17 addition, the ALJ has a duty to try to obtain additional evidence where there is not 18 “sufficient evidence to decide whether [the claimant is] disabled.” 20 C.F.R. 19 §§ 404.1527(c)(3), 416.927(c)(3). 20 The ALJ may discharge the duty to develop the record in several ways, 21 including: “subpoenaing the claimant's physicians, submitting questions to the 22 claimant’s physicians, continuing the hearing, or keeping the record open after the 23 hearing to allow supplementation of the record.” Tonapetyan v. Halter, 242 F.3d 24 1144, 1150 (9th Cir. 2001). 25 2. Summary of the Medical Evidence. 26 On January 12, 2016, state agency consultant Dr. Sohn opined that 27 Plaintiff’s impairments of breast cancer and diabetes would not prevent Plaintiff 28 from working more than twelve months after onset. AR 72, 75. Dr. Sohn offered 3 1 RFC opinions for the period beginning August 20, 2016, i.e., twelve months after 2 her mastectomy. AR 73. Dr. Sohn also opined that no consultative examination 3 was necessary. AR 71. 4 The AR also contains treating records from (1) L.A. Endocrine Care, Inc. 5 (AR 262-68, AR 298-305); (2) Monterey Park Hospital (AR 275-97; AR 378-89); 6 (3) Clínica Médica Bernales (AR 307-76); (3) Oncology Institute of Hope and 7 Innovation (AR 392-536); and (4) WMMC Cecilia Gonzalez De La Hoya Cancer 8 Center (AR 538-612). It does not contain any functional capacity questionnaires 9 completed by treating physicians or opinions by a consultative examiner. 10 At the hearing, the ALJ asked Plaintiff’s representative if there was any 11 additional evidence, and the representative said no. AR 38. The ALJ left the 12 record open to allow Plaintiff more time to submit additional records. AR 52-53. 13 Plaintiff later submitted additional records to the Appeals Council. (JS at 11.) 14 The ALJ ultimately gave “little weight” to Dr. Sohn’s opinions. AR 27. 15 The ALJ noted that Plaintiff had undergone chemotherapy and radiation treatment 16 after Dr. Sohn’s opinion. Id. The ALJ opined that Plaintiff had a more restricted 17 RFC than did Dr. Sohn. Compare AR 25, AR 73. 18 3. Analysis. 19 Plaintiff argues that Dr. Sohn’s opinions are entitled to little weight, and 20 since Dr. Sohn was the only doctor to opine on Plaintiff’s RFC, the ALJ’s RFC 21 determination lacks substantial evidentiary support. (JS at 7.) In effect, Plaintiff 22 argues that no administrative record contains sufficient evidence to decide whether 23 a claimant is disabled unless it contains a reliable examining doctor’s opinion of 24 the claimant’s RFC. (JS at 5-6.) 25 As Defendant points out, however, a claimant’s RFC is a legal determination 26 made by the ALJ synthesizing all the medical and other evidence in the 27 administrative record. 20 C.F.R. §§ 404.1546(c), 416.946(c) (ALJ, not a doctor or 28 medical expert, is responsible for assessing RFC). The record contains hundreds 4 1 of pages of treating notes. Plaintiff does not advance any arguments that the ALJ’s 2 RFC is unsupported by those treating records. Instead, Plaintiff argues that the 3 ALJ’s decision was “based on” Dr. Sohn’s opinions (JS at 12) when, in fact, the 4 ALJ gave Dr. Sohn’s opinions “little weight.” AR 27. Plaintiff has not met her 5 burden of proving that further development of the record was required. See Stokes 6 v. Colvin, No. 13-01970, 2014 WL 12531199, at *4 (S.D. Cal. Mar. 14, 2014) (“A 7 claimant’s residual functional capacity does not depend on any particular medical 8 opinion, it depends on the ALJ’s assessment of all the evidence.”). 9 ISSUE TWO: Plaintiff’s Subjective Symptom Testimony. 10 1. Rules for Evaluating Subjective Symptom Testimony. 11 It is the ALJ’s role to evaluate the claimant’s testimony regarding subjective 12 pain or symptoms. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 13 “[T]he ALJ is not required to believe every allegation of disabling pain, or else 14 disability benefits would be available for the asking, a result plainly contrary to 15 42 U.S.C. § 423(d)(5)(A).” Id. at 1112. An ALJ’s assessment of symptom 16 severity is entitled to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th 17 Cir. 1989). 18 If an individual alleges impairment-related symptoms, the ALJ must 19 evaluate those symptoms using a two-step process. First, “the ALJ must determine 20 whether the claimant has presented objective medical evidence of an underlying 21 impairment ‘which could reasonably be expected to produce the pain or other 22 symptoms alleged.’” Treichler v. Comm’r of SSA, 775 F.3d 1090, 1102 (9th Cir. 23 2014) (quoting Lingenfelter, 504 F.3d at 1036). 24 Second, if the claimant meets the first test, the ALJ may discredit the 25 claimant’s subjective symptom testimony only upon making specific findings that 26 support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). If 27 the ALJ finds testimony as to the severity of a claimant’s pain and impairments is 28 unreliable, then the ALJ must make findings “sufficiently specific to permit the 5 1 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” 2 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Absent a finding or 3 affirmative evidence of malingering, the ALJ must provide “clear and convincing” 4 reasons for rejecting the claimant’s testimony. Lester, 81 F.3d at 834; Ghanim v. 5 Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014). 6 “Although lack of medical evidence cannot form the sole basis for 7 discounting pain testimony,” ALJs may consider that factor in their analysis. 8 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). ALJs may also consider 9 inconsistency in the claimant’s statements. Ghanim, 763 F.3d at 1163; SSR 16-3p, 10 2016 SSR LEXIS 4, at *21 (“[The Commissioner] will compare statements an 11 individual makes in connection with the individual’s claim for disability benefits 12 with any existing statements the individual made under other circumstances.”). If 13 the ALJ’s findings are supported by substantial evidence in the record, courts may 14 not engage in second-guessing. Thomas, 278 F.3d at 959. 15 16 2. The ALJ’s Reasons for Discrediting Plaintiff’s Testimony. The ALJ summarized Plaintiff’s hearing testimony. AR 25. Plaintiff testified 17 that she can do “minor” household tasks such as “dusting, cleaning, and a little bit 18 of cooking.” AR 44. She was unsure whether she could work if she had the 19 opportunity to sit while working. Id. She could shower and dress herself, but 20 slowly. AR 45. She tried to walk 15 minutes per day, and some days she walked 21 20 or 25 minutes. AR 46. She could go grocery shopping with her husband or 22 son, but she could not do laundry because she could only lift 5 to 10 pounds. AR 23 47. She testified that she does not vacuum because her apartment has no carpet, 24 but she could not vacuum if she tried because she does not have the strength. AR 25 47-48. She cannot drive because she cannot feel her feet. AR 48. On good days, 26 she could stand for as long as 30 minutes, but on bad days, only 10 minutes. AR 27 46. She testified that her right shoulder has damaged tendons from her surgery. 28 AR 42. Plaintiff testified that she experienced water retention and swelling. AR 6 1 42. She has difficulty standing because of swollen knees. AR 46. She would get 2 “tired a lot.” AR 45. 3 The ALJ found that while Plaintiff’s condition was likely to cause some pain 4 and weakness, her testimony about the “intensity, persistence, and limiting effects” 5 of her symptoms was “not entirely consistent” with the medical evidence and other 6 evidence of record “for the reasons explained in this decision.” AR 26. The ALJ 7 explained that the medical evidence “does not document disabling symptoms.” Id. 8 The ALJ noted that many of the treating records memorialize Plaintiff’s complaints 9 to her doctors, but those complaints concerned headaches, generalized body aches, 10 and gastrointestinal issues that “do not appear to be disabling or of any significant 11 concern to her treating physicians.” AR 26, citing AR 427-612. 12 As “other evidence,” the ALJ contrasted Plaintiff’s ability to perform 13 personal care, go grocery shopping, and complete household tasks with her 14 testimony that she could not lift as much as 10 pounds and lacked the strength to 15 vacuum. AR 25-26. The ALJ also contrasted Plaintiff’s reported activities with 16 her claims to have “severe nerve damage with associated pain.” AR 26. 17 3. Analysis. 18 Regarding the medical evidence, Plaintiff argues that the ALJ failed to 19 identify what medical evidence is inconsistent with Plaintiff’s testimony. (JS at 20 14.) The ALJ however, cited and contrasted her relatively minor complaints to 21 treating physicians and “relatively normal” physical examination results. AR 26. 22 The treating records cited by the ALJ include the following from the Oncology 23 Institute of Hope and Innovation following her mastectomy in August 2015 (AR 24 42): 25 • 9/25/15: At this initial evaluation, Plaintiff denied or did not exhibit 26 shortness of breath, chest pain, abdominal pain, and “neurologic symptoms or 27 signs.” AR 505. Her locomotor skills were “unremarkable.” Id. The examining 28 doctor found her “motor system normal” and “sensation grossly normal.” AR 507. 7 1 • 10/19/15: Plaintiff reported “mild tenderness” around the area of her prior 2 mastectomy. AR 498. She denied decreased energy level and weakness. AR 499. 3 She also denied abdominal pain, muscle pain, and swollen joints. Id. She was 4 referred to chemotherapy. AR 500. 5 • 10/27/15: She started chemotherapy. AR 495. 6 • 11/16/15: Plaintiff reported mild nausea and “2 episodes of headaches.” 7 Id. She denied the other adverse symptoms. AR 496. She reported that she may 8 require a tooth extraction. AR 497. The doctor noted her diagnosis as “diabetes 9 mellitus without complications.” Id. 10 • 12/7/15: Similar to prior appointment. AR 484-86. 11 • 12/30/15: Plaintiff reported “last chemotherapy” caused “total body pains 12 and headache.” AR 479. She still denied decreased energy level, weakness, 13 various pains, and swelling. AR 480. She had tried tramadol for headache pain, 14 but it caused constipation, and the doctor recommended trying Motrin for 15 headaches. AR 481. 16 17 18 19 20 • 1/20/16: Similar to prior appointment. AR 476-78. She was given amoxicillin for tooth pain. AR 476. • 2/22/16: Similar to prior appointment. AR 469-71. She was cleared for a tooth extraction due to a chemotherapy hold. AR 471. • 3/21/16: She reported abdominal pain lasting “2-3 days” after 21 chemotherapy. AR 455. She denied other symptoms except “mild neuropathy.” 22 AR 457, 460. She had the tooth extraction. AR 458. 23 • 4/25/16: Plaintiff reported abdominal pain and headaches. AR 442. She 24 again denied “weakness” and “muscle pain.” Id. She was still having “some mild 25 neuropathy.” AR 443. 26 • 5/23/16: Similar to prior appointment. AR 427-29. 27 • 7/1/16: Similar to prior appointment. AR 423-25. Plaintiff reported some 28 residual joint and bone pains and “mild numbness” in her hands and feet. Id. 8 1 The ALJ did not err in finding Plaintiff’s reports to her doctor of her 2 symptoms inconsistent with her hearing testimony. She consistently denied 3 decreased energy rather than telling her doctors that she is “tired a lot.” None of 4 these examinations note unusual swelling and she consistently denied joint 5 swelling, in contrast to her testimony that her swollen knees make it difficult for 6 her to stand for longer than 10 minutes some days. These examinations noted no 7 neurologic symptoms or “mild neuropathy” which is quite different from 8 Plaintiff’s testimony that her neuropathy is so severe that she cannot feel her feet. 9 Regarding her daily activities, Plaintiff argues that there is no inconsistency 10 between her testimony and reported activities, because she testified that she 11 performed them slowly and with breaks. (JS at 20-21.) The ALJ did not err in 12 seeing inconsistency in Plaintiff’s statements, on the one hand, that she can walk 13 for 15-20 minutes per day and go grocery shopping, and on the other hand, that she 14 cannot feel her feet and can only stand for 10-30 minutes. When asked about 15 vacuuming, Plaintiff could have testified that she was unsure whether she could 16 vacuum (just as she was unsure whether she could work with a sit/stand option) 17 because she had not tried it recently. Instead, she testified that she lacked the 18 strength to vacuum, testimony that the ALJ reasonably found exaggerated her 19 limitations when she could admittedly do dusting, cleaning, shopping, and some 20 cooking. 21 Considered together, the ALJ provided clear and convincing reasons to 22 discount Plaintiff’s subjective symptom testimony. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 9 1 V. 2 CONCLUSION 3 For the reasons stated above, IT IS ORDERED that judgment shall be 4 entered AFFIRMING the decision of the Commissioner. 5 6 7 8 9 DATED: May 14, 2019 ______________________________ KAREN E. SCOTT United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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