Tamara McCann v. Michael J Astrue, No. 5:2009cv01432 - Document 21 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g),3 IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (rp)
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Tamara McCann v. Michael J Astrue Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 TAMARA MCCANN, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ______________________________) NO. EDCV 09-01432 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Tamara McCann ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter the Commissioner or the Agency ) denying her application 24 for Disability Insurance Benefits ( DIB ) and Supplemental Security 25 Income ( SSI ). 26 to the jurisdiction of the undersigned United States Magistrate Judge. 27 For the reasons stated below, the decision of the Commissioner is 28 AFFIRMED. The parties consented, pursuant to 28 U.S.C. § 636(c), Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for DIB and SSI on January 12, 2004 5 (Administrative Record ( AR ) 34). She alleged a disability onset date 6 of July 22, 2001 due to rheumatoid arthritis, fibromyalgia, narcolepsy, 7 pain in her arms and legs, and depression, but her application was 8 denied initially and upon reconsideration. 9 Plaintiff s request, a hearing was held on November 3, 2005. (AR 34, 40-52). At (AR 53, 10 60). Plaintiff and a Vocational Expert ( VE ) testified at this 11 hearing. 12 an unfavorable decision on January 21, 2006. (AR 18). Plaintiff sought 13 review of the ALJ s decision before the Appeals Council, which denied 14 her request on April 20, 2007. (AR 658, 675). The Administrative Law Judge ( ALJ ) issued (AR 6). 15 16 On June 16, 2007, Plaintiff filed an appeal in this Court. (AR 17 703). On February 6, 2008, the parties stipulated to a voluntary remand 18 of the case for further development of the record, including: updating 19 medical records; obtaining a consultative examination; and obtaining 20 medical testimony. 21 (C.D. Cal. February 6, 2008)). 22 remanded the case to the Appeals Council on February 7, 2008. 23 Docket #17). 24 and remanded the case to the ALJ, a hearing was held on January 20, 25 2009. 26 unfavorable decision. 27 exception, so the ALJ s decision became the final decision of the (McCann v. Astrue, EDCV 07-00712 SS, Docket #16 This Court approved the stipulation and (Id. at After the Appeals Council vacated the original decision (AR 703, 1118-40). On April 1, 2009, the ALJ again issued an (AR 682). Plaintiff did not file a written 28 2 1 Commissioner. (AR 683). 2 Plaintiff then requested judicial review by filing this action. 3 4 IV. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 To qualify for disability benefits, a claimant must demonstrate 8 a medically determinable physical or mental impairment that prevents him 9 from engaging in substantial gainful activity1 and that is expected to 10 result in death or to last for a continuous period of at least twelve 11 months. 12 42 U.S.C. § 423(d)(1)(A)). 13 incapable of performing the work he previously performed and incapable 14 of performing any other substantial gainful employment that exists in 15 the national economy. 16 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 17 18 To decide if a claimant is entitled to benefits, an ALJ conducts 19 a five-step inquiry. 20 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 21 22 (1) Is the claimant presently engaged in substantial gainful 23 activity? If so, the claimant is found not disabled. 24 If not, proceed to step two. 25 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 3 1 (2) Is the claimant s impairment 2 claimant is found not disabled. 3 severe? If not, the If so, proceed to step three. 4 5 (3) Does the claimant s impairment meet or equal one of a 6 list of specific impairments described in 20 C.F.R. Part 7 404, Subpart P, Appendix 1? 8 found disabled. If so, the claimant is If not, proceed to step four. 9 10 (4) Is the claimant capable of performing her past work? 11 so, the claimant is found not disabled. 12 If If not, proceed to step five. 13 14 (5) Is the claimant able to do any other work? 15 claimant is found disabled. 16 If not, the If so, the claimant is found not disabled. 17 18 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 19 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 20 Cir. 2001) (citations omitted). 21 22 The claimant has the burden of proof at steps one through four, and 23 the Commissioner has the burden of proof at step five. Bustamante, 262 24 F.3d at 953-54. 25 establishing an inability to perform past work, the Commissioner must 26 show that the claimant can perform some other work that exists in 27 significant numbers in the national economy, taking into account the If, at step four, the claimant meets his burden of 28 4 1 claimant s residual functional capacity ( RFC ),2 age, education, and 2 work experience. 3 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 4 do so by the testimony of a VE or by reference to the Medical-Vocational 5 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 6 (commonly known as the Grids ). 7 1162 (9th Cir. 2001). 8 related) and nonexertional limitations, the Grids are inapplicable and 9 the ALJ must take the testimony of a VE. 10 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner may Osenbrock v. Apfel, 240 F.3d 1157, When a claimant has both exertional (strength- Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 11 12 V. 13 THE ALJ S DECISION 14 15 The ALJ employed the five-step sequential evaluation process and 16 concluded that Plaintiff was not disabled within the meaning of the 17 Social Security Act. 18 that Plaintiff had not engaged in substantial gainful activity since 19 January 12, 2004, the date of Plaintiff s application. 20 step two, the ALJ found that Plaintiff had the severe impairments of 21 mild degenerative changes in the musculoskeletal system, a diagnosis of 22 fibromyalgia, minor esophageal abnormalities, and depression. 23 However, the ALJ specifically found Plaintiff s depression did not (AR 693). At the first step, the ALJ observed (AR 687). At (Id.). 24 25 26 27 28 2 Residual functional capacity is the most [one] can still do despite [one s] limitations and represents an assessment based on all the relevant evidence in [one s] case record. 20 C.F.R. §§ 404.1545(a), 416.945(a). 5 1 amount to more than a minimal limitation after considering the four 2 broad functional areas. (AR 688). 3 4 At the third step, the ALJ found that the severe impairments at 5 step two did not meet or medically equal a listed impairment. (AR 689). 6 Next, at step four, the ALJ found that Plaintiff had no past relevant 7 work, had a limited education, was able to communicate in English, and 8 at 35, was a younger individual. 9 Plaintiff had the RFC to lift and carry twenty pounds occasionally and 10 ten pounds frequently, and was able to sit, stand or walk for six hours 11 in an eight hour day. 12 prolonged walking, working at heights, around dangerous unguarded 13 moving machinery, or similar hazards, and was limited to entry-level, 14 simple, repetitive, minimally stressful work requiring no contact with 15 the general public. (AR 689). (AR 692). The ALJ found that However, Plaintiff was precluded from (Id.). 16 17 Finally, at step five, the ALJ concluded that, based on Plaintiff s 18 RFC, age, education, and work experience, there were jobs in the 19 national economy that Plaintiff could perform. 20 testimony of the VE, Plaintiff could perform work as an assembler or 21 sorter. 22 disabled, as defined in the Social Security Act. (AR 693). Accordingly, the ALJ found that Plaintiff was not 23 24 \\ 25 \\ 26 \\ 27 \\ 28 According to the \\ 6 (Id.). 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. The court may set aside the 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 10 11 Substantial evidence is more than a scintilla, but less than a 12 preponderance. 13 which a reasonable person might accept as adequate 14 conclusion. 15 a finding, the court must consider the record as a whole, weighing 16 both 17 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 18 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 19 reasonably support either affirming or reversing that conclusion, the 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-21. evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence to support a To determine whether substantial evidence supports that supports and evidence that detracts from the If the evidence can 22 23 VII. 24 DISCUSSION 25 26 Plaintiff contends that the ALJ failed to comply with the remand 27 order issued by the Appeals Council. 28 Plaintiff s Complaint ( Complaint Memo. ) at 2, 4). 7 (Memorandum In Support Of Specifically, she 1 contends that the ALJ failed to obtain evidence from a medical expert 2 to clarify the nature and severity of the claimant s impairment as 3 ordered by the Appeals Council and failed to comply with the Appeals 4 Council s order to evaluate Plaintiff s obesity. 5 disagrees with Plaintiff on both issues. (Id.). This Court 6 7 A. Plaintiff s Failure To Attend The Consultative Doctor Appointments Compels A Negative Disability Determination 8 9 10 Plaintiff contends that the ALJ erred in failing to obtain the 11 opinion of medical experts as to the severity of Plaintiff s impairment. 12 (Complaint Memo. at 2). 13 Council instructed the ALJ to obtain evidence from a medical expert to 14 clarify the nature and severity of the claimant s impairment. 15 04). 16 neurological and one psychiatric. 17 failed to keep her appointments or respond to attempts to reschedule. 18 (AR 687-88, 751-52). Plaintiff does not dispute her failure to keep her 19 appointments, but claims that the ALJ erred in failing to obtain the 20 testimony of a medical expert based on the available medical records or 21 question Plaintiff regarding her failure to keep her appointments. 22 (Complaint Memo. at 3-4). 23 points. Upon remand from this Court, the Appeals (AR 703- In response, the ALJ ordered two consultative examinations, one (AR 687-90). However, Plaintiff This Court disagrees with Plaintiff on both 24 25 The ALJ has an independent duty to fully and fairly develop the 26 record to assure that [a plaintiff s] interests are considered, and may 27 schedule consultative examinations in order to fulfill this obligation. 28 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). 8 However, Social 1 Security regulations state that if a claimant does not have a good 2 reason 3 examinations or tests arranged by the ALJ, then the ALJ may make a 4 negative disability determination based solely on their failure to 5 appear. 6 do not have a good reason for failing or refusing to take part in a 7 consultative examination or test which we arrange for you to get 8 information we need to determine your disability or blindness, we may 9 find that you are not disabled. ); see also Kreidler v. Barnhart, 385 10 F. Supp. 2d 1034, 1037 (C.D. Cal. 2005) ( Plaintiff s repeated failures 11 to attend the consultative examinations scheduled for her constitute a 12 failure to cooperate sufficient to warrant termination of her disability 13 benefits. ); Keach v. Barnhart, 2004 WL 859331, at *6 (N.D. Cal. 2004) 14 ( an individual who refuses to attend a consultative examination may, 15 as a consequence, be found not disabled. ). 16 reason 17 examination. § 416.918. It is up to the claimant to provide good cause 18 for failing to appear at scheduled appointments. 19 obligation to search for an explanation for the claimant s failure to 20 appear. for failing or refusing to take part in consultative 20 C.F.R. § 416.918(a) ( If you are applying for benefits and for failing to appear, the If a claimant has a good Agency will Id. reschedule the An ALJ has no See id. 21 22 Here, Plaintiff failed to appear for either of the two consultative 23 examinations schedule by the ALJ and failed to respond to attempts to 24 reschedule. 25 time and place of her consultative appointments. 26 September 4, 2008, the Agency sent Plaintiff a letter to remind her of 27 these appointments. 28 had failed to appear at the consultative examinations, (AR 688, 690, On August 5, 2008, the Agency notified Plaintiff of the (AR 752). (AR 688, 753). On When the Agency learned that Plaintiff 9 1 751, 752), it sent Plaintiff and her legal representative a letter 2 regarding her failure to go to the scheduled appointments and instructed 3 her to call to reschedule. 4 Plaintiff attempted to reschedule the missed appointments. 5 Plaintiff nor her attorney have established, or even attempted to argue, 6 that she had good cause for missing the scheduled appointments. 7 (See Complaint Memo. at 3-4). 8 Plaintiff s application for benefits solely for this reason. (AR 688, 752). There is no evidence that Neither Therefore, the ALJ was entitled to deny 9 10 Furthermore, the ALJ fulfilled his duty to develop the record by 11 scheduling consultative examinations to evaluate Plaintiff s alleged 12 impairments. Although the Appeals Council ordered the ALJ to [o]btain 13 evidence from a medical expert to clarify the nature and severity of the 14 claimant s impairment, (AR 704) the ALJ was prevented from doing so by 15 Plaintiff s failure to attend her scheduled examinations. 16 Based on the medical records that were available, the ALJ determined 17 that there was no ambiguity or inadequacy in the evidence that would 18 require him to conduct further inquiry. (AR 690-91). Because there was 19 no new medical evidence due to Plaintiff s failure to attend her 20 consultative examinations, it was unnecessary for the ALJ to take 21 further 22 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (stating that 23 the ALJ s duty to develop the record is triggered by ambiguous evidence 24 or the ALJ s finding that the record is inadequate for proper evaluation 25 of the evidence). steps, such as call an additional medical (AR 690). expert. See 26 27 28 In sum, the ALJ was entitled to make a negative disability determination based upon Plaintiff s failure to attend the consultative 10 1 examinations and her failure to offer any explanation or good cause for 2 missing those examinations. 3 an additional medical expert because there was no new medical evidence 4 in the record due to Plaintiff s failure to attend her consultative 5 examinations. Moreover, the ALJ was not required to call Accordingly, remand is not required. 6 7 8 B. The ALJ Was Not Required To Analyze The Impact Of Plaintiff s Obesity 9 10 Plaintiff also contends that remand is required because the ALJ 11 failed to specifically address the limitations caused by Plaintiff s 12 obesity. (Complaint Memo. at 4). 13 14 As an initial matter, regardless of her impairments, the ALJ was 15 entitled to deny benefits as a sanction for Plaintiff s failure to 16 appear at her consultative examinations. 17 Accordingly, any error in failing to consider Plaintiff s obesity was 18 harmless. 19 1162 (9th Cir. 2008) (holding that an ALJ s error in a Social Security 20 benefits hearing is harmless where it does not change the outcome of the 21 benefits determination). See 20 C.F.R. § 416.918(a). See Carmickle v. Comm r, Social Sec. Admin., 533 F.3d 1155, 22 23 Moreover, even without Plaintiff s missed appointments, the ALJ 24 only has the duty to independently consider Plaintiff s alleged obesity 25 when certain factors are met. See Celaya v. Halter, 332 F.3d 1177, 1182 26 (9th Cir. 2003). 27 of disability if it was implicitly raised by the plaintiff s reported 28 symptoms, clear from the record that the plaintiff s obesity was at Obesity should be considered as a factor in a claim 11 1 least close to the listing criterion and was a condition that would 2 exacerbate her reported illnesses, and, in light of the plaintiff s pro 3 se status, the ALJ s observation of the plaintiff and the information 4 on the record should have alerted him to the need to develop the record 5 in respect to her obesity. Id. 6 7 Plaintiff does not meet the Celaya requirements. Plaintiff did not 8 explicitly or implicitly allege obesity as a factor in her disability 9 claim. There was no evidence before the ALJ, and none in the record, 10 indicating that Plaintiff s weight limited her functioning in a way that 11 would require the ALJ to independently consider the impact of her 12 weight. 13 (stating that where the record was silent as to whether and how a 14 plaintiff s obesity might have exacerbated her condition, plaintiff did 15 not specify which listing she believed she would have met or equaled had 16 her obesity been considered, and she did not present other evidence at 17 the hearing that her obesity impaired her ability to work, then the ALJ 18 need not independently consider the impact of a plaintiff s obesity). 19 Indeed, at the time of the hearing, Plaintiff was not considered obese. 20 During the hearing she stated that she was 5 6 tall and weighed 180 21 pounds. 22 obese, Plaintiff needed a BMI of 30.0 or above. 23 5). 24 which does not establish obesity. 25 represented by counsel at the second hearing, who did not seek to have 26 the ALJ address the impact of Plaintiff s obesity. 27 Celaya, 332 F.3d at 1182. 28 \\ See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2002) (AR 1121). As Plaintiff notes in her brief, to be medically (Complaint Memo. at At 5'6' and 180 pounds, Plaintiff concedes that her BMI was 29.0, (Id.). 12 Furthermore, Plaintiff was (AR 1120); see also 1 In sum, any error in failing to consider Plaintiff s obesity was 2 harmless because the ALJ was entitled to deny Plaintiff s claim based 3 solely on her missed appointments. 4 missed appointments, the ALJ did not commit a reversible error in 5 failing to consider the possible impact of Plaintiff s weight on her 6 symptoms. However, even ignoring Plaintiff s 7 8 VIII. 9 CONCLUSION 10 11 Consistent with the foregoing, and pursuant to sentence four of 42 12 U.S.C. § 405(g),3 IT IS ORDERED that judgment be entered AFFIRMING the 13 decision of the Commissioner and dismissing this action with prejudice. 14 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 15 Order and the Judgment on counsel for both parties. 16 17 DATED: July 15, 2010. 18 19 ______/S/_____________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 13
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