Martha Alicia Jimenez v. Michael J Astrue, No. 5:2012cv00267 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge John E. McDermott, IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is AFFIRMED and this case dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 MARTHA ALICIA JIMENEZ, Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-0267-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On February 22, 2012, Martha Alicia Jimenez ( Plaintiff or Claimant ) filed a complaint 20 seeking review of the decision by the Commissioner of Social Security ( Commissioner ) 21 denying Plaintiff s applications for Social Security Disability Insurance benefits and 22 Supplemental Security Income benefits. The Commissioner filed an Answer on May 23, 2012. 23 On September 27, 2012, the parties filed a Joint Stipulation ( JS ). The matter is now ready for 24 decision. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate 26 Judge. After reviewing the pleadings, transcripts, and administrative record ( AR ), the Court 27 concludes that the Commissioner s decision must be affirmed and this case dismissed with 28 prejudice. 1 BACKGROUND 2 Plaintiff is a 46 year old female who applied for Social Security Disability Insurance 3 benefits and Supplemental Security Income benefits on October 16, 2008, alleging disability 4 beginning March 15, 2003. (AR 14.) Plaintiff has not engaged in substantial gainful activity 5 since March 15, 2003, the alleged onset date. (AR 16.) 6 Plaintiff s claims were denied initially on April 3, 2009, and on reconsideration on May 27, 7 2009. (AR 14.) Plaintiff filed a timely request for hearing on June 11, 2009. (AR 14.) Plaintiff 8 appeared and testified at hearings held before Administrative Law Judge ( ALJ ) Michael D. 9 Radensky on May 21, 2010, and September 24, 2010, in San Bernardino, California. (AR 14.) 10 Claimant appeared at the hearings and testified with the assistance of a Spanish interpreter. 11 (AR 14.) Plaintiff was represented by counsel. (AR 14.) Vocational expert ( VE ) David A. 12 Rinehart also appeared and testified at the hearings. (AR 13 14.) The ALJ issued an unfavorable decision on October 14, 2010. (AR 14-27.) The Appeals 14 Council denied review on January 5, 2012. (AR 1-6.) DISPUTED ISSUES 15 16 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as the 17 grounds for reversal and remand: 18 1. pertaining to Plaintiff s psychological/mental impairments. 19 20 21 22 23 Whether the ALJ has properly considered the relevant medical evidence 2. Whether the ALJ has properly considered the relevant medical evidence pertaining to Plaintiff s physical impairments. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 24 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 25 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 26 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 27 based on the proper legal standards). 28 2 1 Substantial evidence means more than a mere scintilla, but less than a 2 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 3 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. at 5 401 (internal quotation marks and citation omitted). 6 This Court must review the record as a whole and consider adverse as well as 7 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where 8 evidence is susceptible to more than one rational interpretation, the ALJ s decision must be 9 upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 10 However, a reviewing court must consider the entire record as a whole and may not affirm 11 simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 12 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 13 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 14 15 The Social Security Act defines disability as the inability to engage in any substantial 16 gainful activity by reason of any medically determinable physical or mental impairment which 17 can be expected to result in death or . . . can be expected to last for a continuous period of not 18 less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 19 established a five-step sequential process to determine whether a claimant is disabled. 20 20 C.F.R. §§ 404.1520, 416.920. 21 The first step is to determine whether the claimant is presently engaging in substantial 22 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 23 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 24 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 25 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 26 significantly limit the claimant s ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 27 1996). Third, the ALJ must determine whether the impairment is listed, or equivalent to an 28 impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d 3 1 at 746. If the impediment meets or equals one of the listed impairments, the claimant is 2 presumptively disabled. Bowen v. Yuckert, 482 U.S. at 141. Fourth, the ALJ must determine 3 whether the impairment prevents the claimant from doing past relevant work. Pinto v. 4 Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before making the step four determination, 1 5 the ALJ first must determine the claimant s residual functional capacity ( RFC ). 20 C.F.R. § 6 416.920(e). The RFC must consider all of the claimant s impairments, including those that are 7 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. If 8 the claimant cannot perform his or her past relevant work or has no past relevant work, the ALJ 9 proceeds to the fifth step and must determine whether the impairment prevents the claimant 10 from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th 11 Cir. 2000). The claimant bears the burden of proving steps one through four, consistent with the 12 13 general rule that at all times the burden is on the claimant to establish his or her entitlement to 14 benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the claimant, the 15 burden shifts to the Commissioner to show that the claimant may perform other gainful activity. 16 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a 17 claimant is not disabled at step five, the Commissioner must provide evidence demonstrating 18 that other work exists in significant numbers in the national economy that the claimant can do, 19 given his or her RFC, age, education, and work experience. 20 C.F.R. § 416.912(g). If the 20 Commissioner cannot meet this burden, then the claimant is disabled and entitled to benefits. 21 Id. THE ALJ DECISION 22 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 23 24 not engaged in substantial gainful activity since March 15, 2003, the alleged onset date. (AR 25 16.) 26 27 28 1 Residual functional capacity ( RFC ) is what one can still do despite [his or her] limitations and represents an assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 4 1 At step two, the ALJ determined that Plaintiff has the following combination of medically 2 determinable severe impairments: history of right carpal tunnel release, mild cervical 3 degenerative disc disease, and mood disorder. (AR 16. ) 4 At step three, the ALJ determined that Plaintiff does not have an impairment or 5 combination of impairments that meets or medically equals one of the listed impairments. (AR 6 16-18.) 7 The ALJ then found that the Plaintiff had the RFC to perform less than the full range of 8 light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the following limitations: 9 . . . can lift and/or carry 20 pounds occasionally and 10 pounds frequently; 10 stand and/or walk 6 out of 8 hours with normal breaks; sit 6 out of 8 hours 11 with normal breaks; perform occasional postural activities but cannot climb 12 ladders, ropes or scaffolds, and is limited to occasional overhead reaching 13 with the right upper extremity, frequent handling and fingering with her right 14 upper extremity, and to performing unskilled work. 15 (AR 18.) In determining this RFC, the ALJ also made an adverse credibility determination, 16 which is not challenged here. (AR 19.) 17 At step four, the ALJ found that Plaintiff is not capable of performing any past relevant 18 work as an assembler and automotive/carburetor as generally performed. (AR 26.) The ALJ, 19 however, found that considering Plaintiff s age, education, work experience, and RFC, there are 20 jobs that exist in significant numbers in the national economy that Plaintiff can perform, 21 including cleaner, housekeeping, shoe packer, and electronics worker. (AR 26-27.) 22 Consequently, the ALJ concluded that Claimant is not disabled within the meaning of the 23 Social Security Act. (AR 27.) 24 25 DISCUSSION The ALJ decision must be affirmed. The ALJ properly considered the relevant medical 26 evidence regarding Plaintiff s mental and physical impairments. The ALJ s non-disability 27 determination is supported by substantial evidence and free of legal error. 28 5 1 I. THE ALJ PROPERLY CONSIDERED PLAINTIFF S MENTAL IMPAIRMENT 2 Plaintiff contends that the ALJ s RFC limitation to unskilled work fails to capture her 3 mental limitations. The Court disagrees. 4 An RFC is not a medical determination but an administrative finding or legal decision 5 reserved to the Commissioner based on consideration of all the relevant evidence, including 6 medical evidence, lay witnesses and subjective symptoms. See SSR 96-5p; 20 C.F.R. 7 § 1527(e). In determining a claimant s RFC, an ALJ must consider all the relevant evidence in 8 the record, including medical records, lay evidence, and the effects of symptoms, including pain 9 reasonably attributable to the medical condition. Robbins, 466 F.3d at 883. 10 The ALJ found that Plaintiff could perform a significant range of light work except that 11 mentally she was limited to unskilled work. (AR 18.) In making this finding, the ALJ relied on 12 the opinions of consulting psychiatric examiner Dr. Ernest Bagner, Workers Compensation 13 examiner Dr. Martha Masson, and State agency reviewing physician Dr. Randall J. Garland. 14 (AR 24-25.) 15 Consulting psychiatrist Dr. Bagner performed a complete psychiatric evaluation on 16 February 8, 2009. He diagnosed depressive disorder, not otherwise specified, and found mild 17 limitations interacting with supervisors, peers and the public, maintaining concentration and 18 attention, and completing simple tasks. (AR 17, 23, 25, 312-13.) She would have mild to 19 moderate limitations handling normal stresses at work, completing complex tasks, and 20 completing a normal work-week without interruption. (AR 25, 312-13.) 21 Workers Compensation psychologist Dr. Martha Masson examined Plaintiff twice in 22 2005 and diagnosed anxiety disorder, not otherwise specified. (AR 23.) Like Dr. Bagner, she 23 opined that Plaintiff had but mild limitations in maintaining concentration and pace and in 24 completing simple tasks. (AR 17.) She also opined that Plaintiff had very slight to slight 25 limitations in her inability to comprehend and follow instructions, and to perform simple and 26 repetitive tasks. (AR 25.) 27 State review psychologist Randall J. Garland, Ph.D., reviewed the medical evidence and 28 completed a Psychiatric Review Technique form on March 16, 2009. (AR 24-25, 323-335.) He 6 1 diagnosed depressive disorder. (AR 326.) He also completed a Mental RFC Assessment, 2 opining that Plaintiff was not significantly limited in the ability to carry out very short and simple 3 instructions and to maintain attention and concentration for extended periods. (AR 337.) 4 Dr. Garland s written comments were as follows: 5 Overall, claimant is able to meet the basic demands of competitive, 6 remunerative, unskilled work on a sustained basis, including the abilities to: 7 1. Understand, carry out and remember simple instructions. 8 2. Make judgments commensurate with the functions of unskilled 9 10 work, i.e., simple work-related decisions. 3. 11 12 Respond appropriately to supervision, co-workers and work situations. 4. Deal with changes in a routine work setting. 13 (AR 24-25, 339.) Dr. Garland s opinion constitutes substantial evidence because it is consistent 14 with independent clinical findings or other independent evidence in the record. Thomas v. 15 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 16 The ALJ reasonably translated these opinions into an RFC for less than the full range of 17 light work, including a limitation to performing unskilled work. (AR 18.) Unskilled work needs 18 little or no judgment to do simple duties that can be learned on the job in a short period of 19 time. 20 C.F.R. § 416.968(a). Plaintiff argues that more mental limitations should have been 20 included in Plaintiff s RFC, but there is no conflict or inconsistency between the ALJ s RFC and 21 the opinions of Dr. Bagner, Dr. Masson, and Dr. Garland. Plaintiff obviously disagrees with the 22 ALJ s interpretation of the medical evidence, but it is the ALJ who is responsible for resolving 23 conflicts in the medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 24 Where, as here, the ALJ s interpretation of the medical evidence is reasonable and based on 25 substantial evidence, it should not be second-guessed. Rollins v. Massanari, 261 F.3d 853, 26 857 (9th Cir. 2001); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ( Where 27 evidence is susceptible to more than one rational interpretation, it is the ALJ s conclusion that 28 must be upheld. ). The Court s conclusion also is buttressed by the ALJ s adverse credibility 7 1 determination that Plaintiff is less limited psychologically than alleged (AR 22), a finding Plaintiff 2 does not challenge. The ALJ did not err in considering Plaintiff s mental impairment. The ALJ s mental RFC 3 4 is supported by substantial evidence. 5 II. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 THE ALJ PROPERLY CONSIDERED PLAINTIFF S PHYSICAL IMPAIRMENTS Plaintiff s next challenge to the ALJ s RFC is that the ALJ improperly considered Plaintiff s physical impairments. Specifically, Plaintiff contends that the ALJ improperly discounted Dr. To s opinion that Plaintiff needs a cane for ambulation. The Court disagrees. A. Relevant Federal Law In evaluating medical opinions, the case law and regulations distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20 C.F.R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In general, an ALJ must accord special weight to a treating physician s opinion because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If a treating source s opinion on the issues of the nature and severity of a claimant s impairments is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with other substantial evidence in the case record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Where a treating doctor s opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Lester, 81 F.3d at 830. However, if the treating physician s opinion is contradicted by another doctor, such as an examining physician, the ALJ may reject the treating physician s opinion by providing specific, legitimate reasons, supported by substantial evidence in the record. Lester, 81 F.3d at 830-31; see also Orn, 495 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Where a treating 28 8 1 physician's opinion is contradicted by an examining professional s opinion, the Commissioner 2 may resolve the conflict by relying on the examining physician s opinion if the examining 3 physician s opinion is supported by different, independent clinical findings. See Andrews, 53 4 F.3d at 1041; Orn, 495 F.3d at 632. Similarly, to reject an uncontradicted opinion of an 5 examining physician, an ALJ must provide clear and convincing reasons. Bayliss v. Barnhart, 6 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining physician s opinion is contradicted by 7 another physician s opinion, an ALJ must provide specific and legitimate reasons to reject it. Id. 8 However, [t]he opinion of a non-examining physician cannot by itself constitute substantial 9 evidence that justifies the rejection of the opinion of either an examining physician or a treating 10 physician ; such an opinion may serve as substantial evidence only when it is consistent with 11 and supported by other independent evidence in the record. Lester, 81 F.3d at 830-31; 12 Morgan, 169 F.3d at 600. 13 B. Discussion 14 Dr. To, whom the ALJ decision erroneously refers to as Dr. Reznick, performed an 15 independent internal medicine evaluation on Plaintiff on December 21, 2009. (AR 350-55.) 16 Acknowledging some joint pain, neck pain and lower back pain, he limited Plaintiff to six hours 17 standing and walking in an eight hour work day and opined that Plaintiff can walk on uneven 18 terrain on an occasional basis. (AR 354.) He observed, however, that Plaintiff ambulates with 19 a limp and is unable to ambulate without using her cane. (AR 352.) He also opined that she 20 needs a cane for prolonged ambulation. (AR 354.) 21 The ALJ rejected Dr. To s opinion that Plaintiff needs a cane because the objective 22 medical evidence as a whole does not support this additional limitation. (AR 24.) Plaintiff 23 claims that the ALJ ignored and/or rejected Dr. To s opinion without any citations whatsoever 24 to contradictory opinions. (JS 17:7-19.) Plaintiff s contention is without merit. The ALJ cited 25 the opinion of consulting orthopedic surgeon Dr. Pamela Moazzaz, who examined Plaintiff on 26 July 9, 2010. (AR 21-22, 24, 530-41.) Dr. Moazzaz stated that Plaintiff was quite dramatic on 27 exam and presents with a cane, but even though Plaintiff claimed that she is unable to 28 ambulate without the cane, she was witnessed ambulating at different velocities by the medical 9 1 staff outside of the examination room. (AR 21-22, 531-32.) Noting that Plaintiff was unreliable 2 and inconsistent during the examination and finding that Plaintiff s subjective complaints were 3 out of proportion to the objective findings (AR 534), Dr. Moazzaz opined that Plaintiff does not 4 require the use of an assistive ambulatory device. (AR 535.) Plaintiff also fails to acknowledge or dispute the extensive evidence of malingering, 5 6 exaggeration, lack of effort, and lack of cooperation and compliance reported by numerous 7 independent medical examiners and thoroughly set forth in the ALJ decision. (AR 20-22.) 8 Even Dr. To reported Plaintiff refused to cooperate in the exam, prompting him to state, I was 9 unable to properly evaluate given her complaints of pain and effort to do the exam. (AR 353.) 10 The ALJ noted Plaintiff s lack of cooperation in this exam. (AR 21.) The ALJ has the responsibility for resolving conflicts in the medical evidence. Andrews, 11 12 53 F.3d at 1039. The ALJ reasonably rejected Dr. To s opinion, which was based on Plaintiff s 13 subjective complaints and exaggerated symptoms and were not credible, in favor of Dr. 14 Moazzaz opinion that Plaintiff had no need for a cane. The ALJ provided specific, legitimate 15 reasons for rejecting Dr. To s opinion. Bayliss, 427 F.3d at 1216. The ALJ s interpretation of 16 the evidence is reasonable, supported by substantial evidence, and should not be second2 17 guessed. Rollins, 261 F.3d at 857; Burch, 400 F.3d at 679. The ALJ did not err in considering Plaintiff s physical impairments. The ALJ s physical 18 19 RFC is supported by substantial evidence. *** 20 The ALJ s RFC is supported by substantial evidence. The ALJ s non-disability 21 22 determination is supported by substantial evidence and free of legal error. 23 24 25 2 26 27 28 Plaintiff also contends that the ALJ failed to discuss the MRI evidence of neuroforaminal narrowing in her cervical spine as of January 2008. Yet the ALJ acknowledged that Plaintiff had mild cervical degenerative disc disease (AR 16), and the ALJ s RFC is consistent with the opinions of numerous consulting examiners, including Dr. To in 2009 (without the cane) and Dr. Moazzaz in 2010, notwithstanding the MRI evidence cited. (AR 24.) 10 ORDER 1 2 IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is 3 AFFIRMED and this case dismissed with prejudice. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: November 2, 2012 7 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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