Janel Flores Baines v. Michael J Astrue, No. 5:2007cv01170 - Document 18 (C.D. Cal. 2008)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 JANEL FLORES BAINES, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) __________________________________) No. EDCV 07-1170-RC OPINION AND ORDER 17 18 Plaintiff Janel Flores Baines filed a complaint on September 25, 19 2007, seeking review of the Commissioner s decision denying her 20 applications for disability benefits. 21 complaint on February 4, 2008, and the parties filed a joint 22 stipulation on March 25, 2008. The Commissioner answered the 23 24 BACKGROUND 25 I 26 On January 5, 2005, plaintiff applied for disability benefits 27 under both Title II of the Social Security Act ( Act ), 42 U.S.C. § 28 423, and the Supplemental Security Income program ( SSI ) of Title XVI 1 of the Act, 42 U.S.C. § 1382(a), claiming an inability to work since 2 January 3, 2003, due to back pain and hip injuries. 3 Administrative Record ( A.R. ) 12, 51-55, 63-64. 4 applications were initially denied on June 2, 2005, and were denied 5 again on October 14, 2005, following reconsideration. 6 The plaintiff then requested an administrative hearing, which was held 7 before Administrative Law Judge F. Keith Varni ( the ALJ ) on 8 January 26, 2007. 9 issued a decision finding plaintiff is not disabled. A.R. 30, 209-23. Certified The plaintiff s A.R. 33-47. On February 6, 2007, the ALJ A.R. 9-19. The 10 plaintiff appealed the decision to the Appeals Council, which denied 11 review on July 26, 2007. A.R. 4-8. 12 13 II 14 The plaintiff, who was born on March 6, 1977, is currently 31 15 years old. A.R. 51, 211. She has an eleventh-grade education, has 16 trained to be a certified nurse s assistant, and previously worked as 17 a telephone service provider. A.R. 56-62, 64-65, 68, 212, 214. 18 19 On January 9, 2003, plaintiff was hospitalized at the Arrowhead 20 Regional Medical Center ( ARMC ), where she gave birth to a son, who 21 weighed 12 pounds, 6 ounces. 22 symphysiotomy2 were performed to aid the delivery. A.R. 120-30, 208. A pubiotomy1 and A.R. 121, 127. 23 24 25 26 27 28 1 A pubiotomy is the surgical separation of the pubic bone lateral to the median line. Dorland s Illustrated Medical Dictionary, 1491 (29th ed. 2000). 2 A symphysiotomy involves the division of the fibrocartilage of the symphysis pubis, in order to facilitate delivery, by increasing the diameter of the pelvis. Id. at 1744. 2 On 1 January 17, 2003, plaintiff was doing well and walking without help. 2 A.R. 90. 3 underwent a cesarean section and tubal ligation. On March 6, 2004, plaintiff was admitted to ARMC, where she A.R. 107-19. 4 5 On December 30, 2004, Harold Luke, M.D., examined plaintiff and 6 diagnosed her with morbid obesity and right hip pain. A.R. 136. 7 Lumbar spine x-rays taken January 23, 2006, were normal, while right 8 hip x-rays taken the same day showed at least 3 cm. of diastasis3 of 9 the pubic symphysis, with no evidence of fracture. A.R. 158-59. 10 11 On May 20, 2005, Buneri T. Sophon, M.D., examined plaintiff, 12 diagnosed her with a history of an operative cut in the pubic bone, 13 and opined plaintiff does not have any significant physical 14 impairment and there are no functional limitations. A.R. 139-43. 15 16 On May 31, 2005, nonexamining physician George G. Spellman, M.D., 17 opined plaintiff can occasionally lift and/or carry 50 pounds, 18 frequently lift and/or carry 25 pounds, and can sit, stand and/or walk 19 for 6 hours in an 8-hour work day. 20 2005, nonexamining physician John Meek, M.D., agreed with this 21 assessment, stating there is no evidence of a severe physical 22 impairment. A.R. 147-54. On September 26, A.R. 156. 23 24 On April 20, 2006, plaintiff was treated in the emergency room at 25 26 27 28 3 Diastasis means a form of dislocation in which there is a separation of two bones normally attached to each other without the existence of a true joint; as in separation of the pubic symphysis. Dorland s Illustrated Medical Dictionary at 494. 3 1 Redlands Community Hospital for dysfunctional uterine bleeding and 2 dehydration. 3 2006, were negative, while pelvic x-rays demonstrated a 3-cm. pubic 4 diastasis, which appeared to be chronic, with mild associated 5 bilateral SI joint degenerative changes and a solitary metallic 6 surgical clip in the right upper pelvic tissues. 7 was again seen in the emergency room on December 22, 2006, when she 8 was diagnosed with anemia, general malaise, and menorrhagia,4 among 9 other things. 10 A.R. 196-97. Bilateral hip x-rays taken October 5, A.R. 186-87, 193-95. A.R. 185. Plaintiff An electrocardiogram was abnormal, but chest x-rays were normal. A.R. 191-92. 11 12 On June 6, 2006, plaintiff was examined at the New Millennium 13 Medical Associates, when she was diagnosed with depression, chronic 14 back pain, and obesity, and she was prescribed Wellbutrin.5 15 75. 16 because she lost it. A.R. 174- However, plaintiff never filled the Wellbutrin prescription A.R. 173. 17 18 19 On January 22, 2007, Dennis M. Carden, D.O., stated: // 20 21 22 23 24 25 26 27 28 4 Menorrhagia, or hypermenorrhea, is excessive uterine bleeding occurring at regular intervals; the period of flow being of usual duration. Dorland s Illustrated Medical Dictionary at 853, 1086. 2000). 5 Wellbutrin . . . is given to help relieve certain kinds of major depression. [¶] Major depression involves a severely depressed mood (for 2 weeks or more) and loss of interest or pleasure in usual activities accompanied by sleep and appetite disturbances, agitation or lack of energy, feelings of guilt or worthlessness, decreased sex drive, inability to concentrate, and perhaps thoughts of suicide. . . . The PDR Family Guide to Prescription Drugs, 737 (8th ed. 2000). 4 1 [Plaintiff] underwent a vaginal delivery of a 13 pound 2 infant on January 3, 2003. 3 her pelvis became separated. This separation may have lead 4 [sic] to pelvic instability. [Plaintiff] has received 5 orthopedic treatment and physical therapy. 6 currently in need of ambulatory assistance. 7 this instability may be permanent. [¶] During the birth process, [¶] She is The duration of 8 9 A.R. 208. 10 11 DISCUSSION 12 III 13 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 14 review the Commissioner s decision denying plaintiff disability 15 benefits to determine if his findings are supported by substantial 16 evidence and whether the Commissioner used the proper legal standards 17 in reaching his decision. 18 1172 (9th Cir. 2008); Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 19 1155, 1159 (9th Cir. 2008). Stubbs-Danielson v. Astrue, 539 F.3d 1169, 20 21 In determining whether the Commissioner s findings are supported 22 by substantial evidence, [this Court] must review the administrative 23 record as a whole, weighing both the evidence that supports and the 24 evidence that detracts from the Commissioner s conclusion. 25 v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 26 246 F.3d 1195, 1201 (9th Cir. 2001). 27 reasonably support either affirming or reversing the decision, [this 28 Court] may not substitute [its] judgment for that of the 5 Reddick Where the evidence can 1 Commissioner. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), 2 cert. denied, 128 S. Ct. 1068 (2008); Lingenfelter v. Astrue, 504 F.3d 3 1028, 1035 (9th Cir. 2007). 4 5 The claimant is disabled for the purpose of receiving benefits 6 under the Act if she is unable to engage in any substantial gainful 7 activity due to an impairment which has lasted, or is expected to 8 last, for a continuous period of at least twelve months. 9 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 10 The claimant bears the burden of establishing a prima facie case of 11 disability. 12 cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 13 1289 (9th Cir. 1996). 42 U.S.C. §§ Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), 14 15 The Commissioner has promulgated regulations establishing a five- 16 step sequential evaluation process for the ALJ to follow in a 17 disability case. 18 the ALJ must determine whether the claimant is currently engaged in 19 substantial gainful activity. 20 If not, in the Second Step, the ALJ must determine whether the 21 claimant has a severe impairment or combination of impairments 22 significantly limiting her from performing basic work activities. 23 C.F.R. §§ 404.1520(c), 416.920(c). 24 must determine whether the claimant has an impairment or combination 25 of impairments that meets or equals the requirements of the Listing of 26 Impairments ( Listing ), 20 C.F.R. § 404, Subpart P, App. 1. 27 C.F.R. §§ 404.1520(d), 416.920(d). 28 ALJ must determine whether the claimant has sufficient residual 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 If so, in the Third Step, the ALJ 20 If not, in the Fourth Step, the 6 1 functional capacity despite the impairment or various limitations to 2 perform her past work. 3 in Step Five, the burden shifts to the Commissioner to show the 4 claimant can perform other work that exists in significant numbers in 5 the national economy. 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, 20 C.F.R. §§ 404.1520(g), 416.920(g). 6 7 Applying the five-step sequential evaluation process, the ALJ 8 found plaintiff has not engaged in substantial gainful activity since 9 her alleged onset date, January 3, 2003. (Step One). The ALJ then 10 found that plaintiff has the following severe combination of 11 impairments: minor degree of pubic diastasis combined with obesity 12 disorder (Step Two); however, she does not have an impairment or 13 combination of impairments that meets or equals a Listing. 14 Three). 15 relevant work as a telephone service operator; therefore, she is not 16 disabled. (Step The ALJ next determined plaintiff can perform her past (Step Four). 17 IV 18 19 The Step Two inquiry is a de minimis screening device to dispose 20 of groundless claims. Smolen, 80 F.3d at 1290; Webb v. Barnhart, 433 21 F.3d 683, 687 (9th Cir. 2005). 22 including a severity requirement at Step Two of the sequential 23 evaluation process increases the efficiency and reliability of the 24 evaluation process by identifying at an early stage those claimants 25 whose medical impairments are so slight that it is unlikely they would 26 be found to be disabled even if their age, education, and experience 27 were taken into account. 28 S. Ct. 2287, 2297, 96 L. Ed. 2d 119 (1987). The Supreme Court has recognized that Bowen v. Yuckert, 482 U.S. 137, 153, 107 7 However, an overly 1 stringent application of the severity requirement violates the Act by 2 denying benefits to claimants who do meet the statutory definition of 3 disabled. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994). 4 5 A severe impairment or combination of impairments within the 6 meaning of Step Two exists when there is more than a minimal effect on 7 an individual s ability to do basic work activities. 8 at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see 9 also 20 C.F.R. §§ 404.1521(a), 416.921(a) ( An impairment or Webb, 433 F.3d 10 combination of impairments is not severe if it does not significantly 11 limit [a person s] physical or mental ability to do basic work 12 activities. ). 13 necessary to do most jobs, including physical functions such as 14 walking, standing, sitting, lifting, pushing, pulling, reaching, 15 carrying or handling, as well as the capacity for seeing, hearing and 16 speaking, understanding, carrying out, and remembering simple 17 instructions, use of judgment, responding appropriately to 18 supervision, co-workers and usual work situations, and dealing with 19 changes in a routine work setting. 20 C.F.R. §§ 404.1521(b), 20 416.921(b); Webb, 433 F.3d at 686. If the claimant meets her burden 21 of demonstrating she suffers from an impairment affecting her ability 22 to perform basic work activities, the ALJ must find that the 23 impairment is severe and move to the next step in the SSA s five- 24 step process. 25 2001) (emphasis in original); Webb, 433 F.3d at 686. Basic work activities are the abilities and aptitudes Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 26 27 28 The plaintiff contends that the ALJ erred in failing to find she has a severe mental impairment. The Court disagrees. 8 1 A physical or mental impairment must be established by medical 2 evidence consisting of signs, symptoms, and laboratory findings, not 3 only by the claimant s statement of symptoms. 4 416.908; Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). 5 Here, plaintiff, who was represented by counsel at the administrative 6 hearing, A.R. 211, predicated her disability claim on her physical 7 complaints, rather than any mental impairment. 8 Moreover, at the administrative hearing, plaintiff testified she was 9 not receiving any mental health treatment, but she was talking to her A.R. 221. 20 C.F.R. §§ 404.1508, See, e.g., A.R. 63-64. 10 pastor. Nevertheless, plaintiff also testified she had 11 been taking Wellbutrin twice a day for approximately 6 months; but 12 this statement is not supported by the medical record, which shows 13 that although her treating physician diagnosed her with depression and 14 prescribed Wellbutrin, she lost the prescription and never had it 15 filled. A.R. 168-75. 16 17 Although plaintiff s treating physician diagnosed her with 18 depression in June 2006, A.R. 174-75, that diagnosis, by itself, does 19 not demonstrate plaintiff has a severe mental impairment, see, e.g., 20 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) ( Although the 21 [claimant] clearly does suffer from diabetes, high blood pressure, and 22 arthritis, there is no evidence to support his claim that those 23 impairments are severe. ); Matthews v. Shalala, 10 F.3d 678, 680 24 (9th Cir. 1993) ( The mere existence of an impairment is insufficient 25 proof of a disability. ), and there is simply no evidence in the 26 record supporting plaintiff s claim of a severe mental impairment. 27 Therefore, the ALJ s implied finding that plaintiff does not have a 28 // 9 1 severe mental impairment is supported by substantial evidence.6 2 Carmickle, 533 F.3d at 1164-65; Ukolov, 420 F.3d at 1006. 3 4 5 V A claimant s residual functional capacity ( RFC ) is what she can 6 still do despite her physical, mental, nonexertional, and other 7 limitations. 8 1152, 1155 n.5 (9th Cir. 1989). 9 the RFC to perform a full range of medium work.7 Mayes, 276 F.3d at 460; Cooper v. Sullivan, 880 F.2d Here, the ALJ found plaintiff retains A.R. 15. However, 10 plaintiff contends the ALJ s decision is not supported by substantial 11 evidence because the ALJ did not address the side effects of her 12 medication and erroneously rejected the opinion of her treating 13 physician, Dr. Carden. 14 15 A. 16 In determining a claimant s limitations, the ALJ must consider 17 Side Effects From Medication: all factors that might have a significant impact on a claimant s 18 19 20 21 22 23 24 25 6 Alternately, even if the ALJ should have found plaintiff has a severe mental impairment, his failure to do so was harmless error since plaintiff has not set forth, and there is no evidence in the record, of any functional limitations as a result of her [mental impairment] that the ALJ failed to consider. Burch v. Barnhart, 400 F.3d 676, 682-84 (9th Cir. 2005); see also Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) ( The court will not reverse an ALJ s decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination. (citations and internal quotation marks omitted)). 26 7 27 28 Under Social Security regulations, [m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. §§ 404.1567(c), 416.967(c). 10 1 ability to work, including the side effects of medication. Erickson 2 v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993); Varney v. Sec y of 3 Health & Human Servs., 846 F.2d 581, 585 (9th Cir. 1988). 4 effects can be a highly idiosyncratic phenomenon and a claimant s 5 testimony as to their limiting effects should not be trivialized. 6 Varney, 846 F.2d at 585. 7 experiencing a side effect known to be associated with a particular 8 medication, the ALJ may disregard the testimony only if he support[s] 9 that decision with specific findings similar to those required for [S]ide Thus, when a claimant testifies she is 10 excess pain testimony, as long as the side effects are in fact 11 associated with the claimant s medication(s). Id. 12 13 Here, plaintiff testified she takes Darvocet for pain,8 and that 14 medication seems to . . . make [her] a little dizzy. . . . 9 15 217-18. 16 credible to the extent it conflicted with plaintiff s ability to 17 perform medium work. 18 the ALJ s negative credibility determination, this finding provides a 19 sufficient basis to reject her testimony about the side effects of 20 Darvocet. 21 (ALJ properly rejected claimant s alleged side effects, including 22 dizziness and difficulties in concentration, with finding claimant A.R. The ALJ noted this testimony, but concluded it was not A.R. 16-18. Since plaintiff has not challenged See Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) 23 8 24 25 Darvocet is a mild narcotic analgesic[] prescribed for the relief of mild to moderate pain, with or without fever. The PDR Family Guide to Prescription Drugs, 177 (8th ed. 2000). Dizziness is a common side effect of Darvocet. Id. 26 9 27 28 The plaintiff also stated she previously took Vicodin and Tylenol with Codeine for pain, and those medications sometimes made her blitzed[,] so her medication was changed to Darvocet. A.R. 217-18. 11 1 lacked credibility). Moreover, plaintiff points to no specific 2 evidence in the record demonstrating she complained to any physician 3 about the side effects of Darvocet. 4 Redlands Community Hospital on December 22, 2006, approximately one 5 month before the administrative hearing, plaintiff reported no 6 reaction to the medication she was taking. 7 ALJ did not err in failing to address the alleged side effects from 8 plaintiff s medication. 9 Cir. 2006); see also McFarland v. Astrue, 288 Fed. Appx. 357, 360 (9th To the contrary, when examined at A.R. 193. Therefore, the Greger v. Barnhart, 464 F.3d 968, 973 (9th 10 Cir. 2008) ( [Claimant] claims the ALJ failed to consider medication 11 side effects. 12 the record where he complained of medication side effects. 13 contrary, the record is replete with statements by [claimant] to 14 medical care providers that he was not experiencing side effects from 15 his various medications. 16 to address side effects of medication in his decision. ).10 However, [claimant] points to no specific evidence in To the Thus, we find the ALJ did not err in failing 17 18 B. Treating Physician s Opinion: 19 The medical opinions of treating physicians are entitled to 20 special weight because the treating physician is employed to cure and 21 has a greater opportunity to know and observe the patient as an 22 individual. 23 Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 24 1999). 25 for rejecting the uncontroverted opinion of a treating physician, Ryan 26 v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick, Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Therefore, the ALJ must provide clear and convincing reasons 27 28 10 See Fed. R. App. P. 32.1(a); Ninth Circuit Rule 36-3(b). 12 1 157 F.3d at 725, and [e]ven if [a] treating doctor s opinion is 2 contradicted by another doctor, the ALJ may not reject this opinion 3 without providing specific and legitimate reasons supported by 4 substantial evidence in the record. 5 Tommasetti, 533 F.3d at 1041. Reddick, 157 F.3d at 725; 6 7 On January 22, 2007, Dr. Carden recited that on January 3, 2003, 8 plaintiff s pelvis became separated while giving birth, she has 9 received orthopedic treatment and physical therapy for this condition, 10 and she currently needs ambulatory assistance. 11 rejected Dr. Carden s opinion that plaintiff currently needs 12 ambulatory assistance, finding it unpersuasive, tentative, 13 speculative, and unsupported by any citation of clinically 14 determinable limitations. 11 15 the ALJ found that Dr. Carden did not support this assertion with any 16 diagnostic findings[,] did not articulate with specificity[] the 17 details of [plaintiff s] instability[] or the nature of the ambulatory 18 assistance that she needs[,] and did not indicate what[,] if any, 19 prescription of treatment the [plaintiff s] condition requires. 20 18. 21 including a treating physician, if that opinion is brief, conclusory, 22 and inadequately supported by clinical findings[,] Thomas, 278 F.3d 23 at 957; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005), this A.R. 18. A.R. 208. The ALJ In making this determination, Since [t]he ALJ need not accept the opinion of any physician, 24 25 26 27 28 A.R. 11 The ALJ also stated Dr. Carden . . . does not appear to be a treating physician as there are no medical records to show that Dr. Carden has actually treated the claimant or ever examined her for that matter. A.R. 18. The Court disagrees since ARMC medical records show Dr. Carden has treated plaintiff. See, e.g., A.R. 85-87, 89, 119-21. 13 1 reason for rejecting Dr. Carden s opinion is a specific and legitimate 2 reason supported by substantial evidence. 3 4 The ALJ also found that Dr. Carden s opinion is inconsistent with 5 diagnostic findings in the record showing plaintiff s ambulation is 6 unimpaired. 7 evidence in the record, A.R. 90, 107, 140, and constitutes a specific 8 and legitimate reason for rejecting Dr. Carden s opinion. 9 Comm r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); 10 Morgan, 169 F.3d at 602; see also Connett v. Barnhart, 340 F.3d 871, 11 875 (9th Cir. 2003) (ALJ properly rejected treating physician s 12 opinion that was inconsistent with other physicians examination of 13 claimant). 14 based on substantial evidence for [his] rejection of [Dr. Carden s] 15 opinion. 12 16 plaintiff s claim that the ALJ s Step Four determination is not 17 supported by substantial evidence. A.R. 18. This finding, too, is supported by substantial Batson v. Thus, the ALJ provided specific and legitimate reasons Tommasetti, 533 F.3d at 1037. Thus, there is no merit to 18 19 ORDER 20 21 IT IS ORDERED that: (1) plaintiff s request for relief is denied; // 22 12 23 24 25 26 27 28 The plaintiff also claims the ALJ failed to fully develop the record because he did not recontact Dr. Carden to inquire about the basis for Dr. Carden s opinion. However, [a]n ALJ s duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. Mayes, 276 F.3d at 459-60; Webb, 433 F.3d at 687. Here, [t]he record before the ALJ was neither ambiguous nor inadequate to allow for proper evaluation of the evidence. Mayes, 276 F.3d at 460. Therefore, the ALJ did not fail to properly develop the medical record. 14 1 and (2) the Commissioner s decision is affirmed, and Judgment shall be 2 entered in favor of defendant. 3 4 DATE: December 11, 2008 5 6 /s/ Rosalyn M. Chapman ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\07-1170.mdo 12/11/08 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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