Virginia Chavez v. Carolyn W Colvin, No. 5:2014cv01547 - Document 21 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. Consistent with the foregoing, and under sentence four of 42 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)
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Virginia Chavez v. Carolyn W Colvin Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VIRGINIA CHAVEZ, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. EDCV 14-1547-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed July 9, 2015, which the Court has taken under submission 26 without oral argument. 27 Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the The For the reasons stated below, the 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1958. (Administrative Record (“AR”) 3 176.) 4 and worked as an employment-claim aide, census taker, and medical 5 service technician. 6 She received a master’s degree in educational counseling (AR 20, 35.) On January 21, 2011, Plaintiff filed applications for DIB 7 and SSI (AR 176), alleging that she had been unable to work since 8 January 5, 2010, because of “right leg injury”; tendonitis in 9 both arms, her right shoulder, and her right leg; and lower- and 10 upper-back pain (AR 207). 11 initially and on reconsideration, she requested a hearing before 12 an Administrative Law Judge. 13 February 8, 2013, at which Plaintiff, who was represented by 14 counsel, testified, as did a vocational expert. 15 a written decision issued February 22, 2013, the ALJ found 16 Plaintiff not disabled. 17 Appeals Council denied Plaintiff’s request for review. 18 This action followed. 19 III. STANDARD OF REVIEW 20 After her applications were denied (AR 75.) (AR 10-21.) A hearing was held on (AR 33-60.) In On June 5, 2014, the (AR 1.) Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 25 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 evidence means such evidence as a reasonable person might accept 27 as adequate to support a conclusion. 28 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 The ALJ’s findings and Substantial Richardson, 402 U.S. at 1 It is more than a scintilla but less than a preponderance. 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 4 substantial evidence supports a finding, the reviewing court 5 “must review the administrative record as a whole, weighing both 6 the evidence that supports and the evidence that detracts from 7 the Commissioner’s conclusion.” 8 720 (9th Cir. 1996). 9 either affirming or reversing,” the reviewing court “may not To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 10 substitute its judgment” for that of the Commissioner. 11 720-21. 12 IV. Id. at THE EVALUATION OF DISABILITY 13 People are “disabled” for purposes of receiving Social 14 Security benefits if they are unable to engage in any substantial 15 gainful activity owing to a physical or mental impairment that is 16 expected to result in death or has lasted, or is expected to 17 last, for a continuous period of at least 12 months. 18 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 19 1992). 42 U.S.C. 20 A. The Five-Step Evaluation Process 21 The ALJ follows a five-step sequential evaluation process to 22 assess whether a claimant is disabled. 23 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 24 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 25 step, the Commissioner must determine whether the claimant is 26 currently engaged in substantial gainful activity; if so, the 27 claimant is not disabled and the claim must be denied. 28 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 3 20 C.F.R. In the first 1 If the claimant is not engaged in substantial gainful 2 activity, the second step requires the Commissioner to determine 3 whether the claimant has a “severe” impairment or combination of 4 impairments significantly limiting her ability to do basic work 5 activities; if not, the claimant is not disabled and her claim 6 must be denied. 7 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 8 impairments, the third step requires the Commissioner to 9 determine whether the impairment or combination of impairments 10 meets or equals an impairment in the Listing of Impairments 11 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 12 1; if so, disability is conclusively presumed. 13 §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 14 If the claimant’s impairment or combination of impairments 15 does not meet or equal an impairment in the Listing, the fourth 16 step requires the Commissioner to determine whether the claimant 17 has sufficient residual functional capacity (“RFC”)1 to perform 18 her past work; if so, she is not disabled and the claim must be 19 denied. 20 has the burden of proving she is unable to perform past relevant 21 work. 22 burden, a prima facie case of disability is established. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. 23 If that happens or if the claimant has no past relevant 24 work, the Commissioner then bears the burden of establishing that 25 the claimant is not disabled because she can perform other 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 substantial gainful work available in the national economy. 2 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 3 That determination comprises the fifth and final step in the 4 sequential analysis. 5 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 6 B. The ALJ’s Application of the Five-Step Process 7 At step one, the ALJ found that Plaintiff had not engaged in 8 substantial gainful activity since January 5, 2010, the alleged 9 onset date. (AR 12.) At step two, she concluded that Plaintiff 10 had severe impairments of tendonitis, right-knee osteoarthritis, 11 “history of chondromalacia patella grade III, status post- 12 surgery,” lumbar-disc disease with radiculitis, right-shoulder 13 impingement, “right carpal tunnel syndrome,” adjustment disorder 14 “with anxious mood,” and migraine headaches. 15 three, the ALJ determined that Plaintiff’s impairments did not 16 meet or equal a listing. 17 (Id.) At step (AR 13.) At step four, the ALJ found that Plaintiff had the RFC to 18 perform light work with additional restrictions. 19 Plaintiff was precluded from repetitive, constant pushing and 20 pulling with her right lower extremity but could occasionally 21 bend, stoop, climb steps, balance, kneel, crouch, crawl, and 22 squat. 23 “the right upper extremity of the right dominant hand.” 24 She could occasionally climb ladders, ropes, or scaffolds but was 25 precluded from working around moving machinery and other hazards. 26 (Id.) 27 extreme temperatures, and walking on uneven terrain.” 28 was also “to avoid jobs that require hypervigilance or intense (Id.) (AR 14.) She was precluded from repetitive, constant use of (Id.) She was to “avoid concentrated exposure to vibration, 5 (Id.) She 1 concentration on a particular task” for which she “could not be 2 off tasks [sic] even for a briefest amount of time” or for which 3 “safety might be an issue.” 4 (Id.) Based on the VE’s testimony, the ALJ concluded that 5 Plaintiff could perform her past relevant work as an employment- 6 claim aide, census taker, and medical service technician. 7 20.) 8 V. 9 Accordingly, she found her not disabled. (AR (AR 21.) DISCUSSION Plaintiff claims that the ALJ erred in finding that her 10 impairments did not meet or equal Listing 1.03 and in assessing 11 her credibility. 12 addresses Plaintiff’s contentions in reverse order. 13 14 15 A. (J. Stip. at 3.) For efficiency, the Court The ALJ Properly Assessed Plaintiff’s Credibility 1. Applicable law An ALJ’s assessment of symptom severity and claimant See Weetman v. 16 credibility is entitled to “great weight.” 17 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended); Nyman v. 18 Heckler, 779 F.2d 528, 531 (9th Cir. 1986) (as amended). 19 ALJ is not ‘required to believe every allegation of disabling 20 pain, or else disability benefits would be available for the 21 asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 22 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting 23 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 24 “[T]he In evaluating a claimant’s subjective symptom testimony, the See Lingenfelter, 504 F.3d 25 ALJ engages in a two-step analysis. 26 at 1035-36. 27 has presented objective medical evidence of an underlying 28 impairment ‘[that] could reasonably be expected to produce the “First, the ALJ must determine whether the claimant 6 1 pain or other symptoms alleged.’” 2 v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 3 such objective medical evidence exists, the ALJ may not reject a 4 claimant’s testimony “simply because there is no showing that the 5 impairment can reasonably produce the degree of symptom alleged.” 6 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 7 original). 8 9 Id. at 1036 (quoting Bunnell If If the claimant meets the first test, the ALJ may discredit the claimant’s subjective symptom testimony only if she makes 10 specific findings that support the conclusion. 11 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 12 affirmative evidence of malingering, the ALJ must provide “clear 13 and convincing” reasons for rejecting the claimant’s testimony. 14 Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 2015); 15 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 16 Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 17 2014). 18 See Berry v. Absent a finding or In assessing a claimant’s credibility, the ALJ may consider, 19 among other factors, (1) ordinary techniques of credibility 20 evaluation, such as the claimant’s reputation for lying, prior 21 inconsistent statements, and other testimony by the claimant that 22 appears less than candid; (2) unexplained or inadequately 23 explained failure to seek treatment or to follow a prescribed 24 course of treatment; (3) the claimant’s daily activities; (4) the 25 claimant’s work record; and (5) testimony from physicians and 26 third parties. 27 1186 (9th Cir. 2015); Thomas v. Barnhart, 278 F.3d 947, 958-59 28 (9th Cir. 2002). Rounds v. Comm’r Soc. Sec. Admin., 795 F.3d 1177, If the ALJ’s credibility finding is supported 7 1 by substantial evidence in the record, the reviewing court “may 2 not engage in second-guessing.” 2. 3 4 Thomas, 278 F.3d at 959. Relevant background In an Exertion Questionnaire completed on February 18, 2011, 5 Plaintiff stated that her arms hurt when she carried a laundry 6 basket or held a cell phone “too long.” 7 drop her keys and other “normal things” from her hands. 8 224.) 9 could walk at the mall. (AR 224-25.) She would (AR Although she never timed how long she could walk, she (Id.) Plaintiff was able to climb 10 stairs, but her legs would hurt and her knees would “buckle up” 11 so that she couldn’t “stand in attention.” 12 washed dishes “on a daily basis” (id.) but could not mop or 13 vacuum (AR 226). 14 225.) 15 devices for walking, Plaintiff stated, “Have use[d] crutches to 16 go to work and cane when my leg hurts a lot,” and “Have used a 17 walker to get to work also.” 18 on her left arm after an accident in December 2009. 19 (AR 225.) Plaintiff She could drive for 30 to 45 minutes. (AR In the section asking whether she used any assistive (AR 226.) She also used a splint (Id.) At the hearing, Plaintiff testified that she fell on the 20 escalator at work and twisted her right leg and right arm. (AR 21 38-39; see AR 311 (injury occurred in Oct. 2009).) 22 2009, she was hit by a car. 23 Plaintiff’s left elbow).) 24 right knee, legs, neck, shoulder, back, and wrist (AR 43, 46, 48) 25 and rated her daily pain eight on a scale of 10 even with pain 26 medication (AR 43). 27 because of forearm pain. 28 a little bit,” but ever since her accident the pain was “so In December (AR 39; see AR 507 (car hit She testified that she had pain in her She stated that she wasn’t able to type (AR 47-48.) 8 Wearing a brace “help[ed] 1 piercing” that she couldn’t type. (AR 48.) She later testified, 2 however, that she could lift her arms overhead (AR 46), reach out 3 in front (id.), and move her neck up, down, left, and right 4 without any problems (AR 49). 5 worked at all, two days a month, in October 2010, and that her 6 most recent full-time work ended in January 2009. 7 On dates significantly later than that, however, Plaintiff 8 complained to doctors or other medical providers of stress “at 9 work.” Plaintiff testified that she last (AR 35-37.) (See, e.g., AR 404 (Plaintiff complaining in March 2011 10 that “for several months she has been under increased stress at 11 work as well as through the National Guard”), 544 (complaining in 12 April 2011 of “feeling harassed by supervisors at both civilian 13 work at [sic] with Natl Guard”).) 14 continued to seek full-time employment after her alleged onset 15 date. 16 She acknowledged that she (AR 42.) Plaintiff testified that in October 2011 she had surgery on 17 her right knee to “take her meniscus out.”2 18 that “it still hurt[]” and was “still painful,” “too painful to 19 even exercise.” 20 physical therapy for her knees, she said no. 21 (Id.) (AR 46.) She stated When the ALJ asked her if she ever did (AR 47.) Plaintiff testified that she could stand or walk for an hour 22 without needing to sit and could sit for a “couple of hours” 23 before needing to get up. 24 groceries. (Id.) (AR 41.) She needed help lifting She had a valid driver’s license and could 25 26 27 28 2 Meniscus is cartilage that cushions the space between the bones in the knee. See Knee arthroscopy, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/002972.htm (last updated Jan. 17, 2013). Surgery is used to repair or remove torn meniscus. See id. 9 1 “drive okay.” 2 (Id.) Plaintiff further testified that she suffered from severe 3 migraine headaches about three or four times a month. 4 50.)3 5 [she] did before.” She was depressed because she couldn’t “function like 6 7 (AR 49- 3. (AR 50.) Analysis The ALJ found that “[Plaintiff’s] allegations concerning the 8 intensity, persistence and limiting effects of her symptoms 9 [were] partially credible.” (AR 15; see also AR 17 (finding 10 Plaintiff’s allegations “not entirely credible”).) As discussed 11 below, she provided clear and convincing reasons for doing so. 12 The ALJ found that Plaintiff’s alleged symptoms and 13 limitations were “greater than expected in light of the objective 14 evidence of record as a whole.” 15 noted that the record contained “no restrictions recommended by 16 the treating doctor” and “no significant diagnostic findings.” 17 (AR 16.) 18 showing mild or unremarkable findings. 19 November 2009 x-ray of her right elbow showed no evidence of 20 fracture, dislocation, or acute osseous abnormality. 21 A December 2009 x-ray of her left elbow after her car accident 22 showed no fracture or subluxation, bony mineralization within 23 normal limits, and unremarkable alignment. 24 2009 MRI of her lower back revealed minor facet arthropathy4 but (AR 15-16.) Specifically, she She summarized the results of numerous x-rays and MRIs (AR 18.) For example, a (AR 384.) (AR 316.) A December 25 26 3 In September 2012, she apparently told a chiropractor that her headaches were “mild . . . with pounding.” (AR 567.) 27 4 Arthropathy is disease affecting a joint. 28 10 See Stedman’s (continued...) 1 was otherwise unremarkable. 2 her left shoulder showed no detectable abnormality. 3 May 2010 MRI of her cervical spine revealed small disc 4 protrusions but no neural impingement. 5 MRI of her right shoulder showed mild impingement with tendonitis 6 but no evidence of rotator-cuff tear. 7 (AR 315.) A February 2010 x-ray of (AR 382.) (AR 383.) A A July 2010 (AR 572.) The ALJ also noted that there was “no evidence of atrophy in 8 [Plaintiff’s] evidence as a whole” (AR 16), later citing a 9 February 2011 treatment note in which one of Plaintiff’s treating 10 physicians observed “no evidence of any obvious muscle atrophy” 11 in her shoulders, arms, forearms, or hands (AR 17, 373). 12 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (as amended) 13 (affirming ALJ’s discounting of claimant’s allegations, including 14 that claimant “did not exhibit muscular atrophy”); Spurlock v. 15 Colvin, No. EDCV 14-01521-JEM, 2015 WL 1735196, at *8 (C.D. Cal. 16 Apr. 16, 2015) (finding that lack of muscle atrophy is legitimate 17 consideration in evaluating claimant’s credibility). 18 entitled to consider the lack of objective medical evidence in 19 assessing Plaintiff’s credibility. 20 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence 21 cannot form the sole basis for discounting pain testimony, it is 22 a factor that the ALJ can consider in his credibility 23 analysis.”); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 24 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical 25 record is a sufficient basis for rejecting the claimant’s 27 28 (...continued) Medical Dictionary 150 (27th ed. 2000). 11 The ALJ was See Burch v. Barnhart, 400 26 4 See 1 subjective testimony.”); Lingenfelter, 504 F.3d at 1040 (in 2 determining credibility, ALJ may consider “whether the alleged 3 symptoms are consistent with the medical evidence”). 4 The ALJ also found Plaintiff not entirely credible because 5 her statements regarding her symptoms and limitations were 6 “generally . . . inconsistent and unpersuasive.” 7 noted that although Plaintiff testified that she had pain in her 8 right knee, leg, neck, shoulder, back, and wrist (AR 43, 46, 48) 9 and rated her daily pain eight on a scale of 10 even with pain 10 medication (AR 43), she also said that she could lift her arms 11 overhead (AR 46), reach out in front (id.), and move her neck up, 12 down, left, and right without any problems (AR 49). 13 noted that although Plaintiff alleged that she was depressed and 14 could not function like she used to, she “did not demonstrate or 15 manifest any difficulty concentrating during the hearing,” and 16 she “appeared to process the questions without difficulty, and to 17 respond to the questions appropriately and immediately.” 18 see AR 50.) 19 onset date, Plaintiff held herself out as available for work by 20 receiving unemployment benefits and applying for jobs. 21 37, 42.) 22 (AR 16.) She The ALJ (AR 17; Moreover, as the ALJ noted, even after her alleged (AR 35- These inconsistencies were a clear and convincing reason for 23 discrediting Plaintiff’s allegations. 24 1284 (in assessing credibility, ALJ may consider “ordinary 25 techniques of credibility evaluation,” such as prior inconsistent 26 statements); Carmickle, 533 F.3d at 1161–62 (noting that receipt 27 of unemployment benefits can undermine claimant’s allegations if 28 she held herself out as available to work); Reyes v. Colvin, No. 12 See Smolen, 80 F.3d at 1 CV 13-4850-MAN, 2015 WL 349352, at *7 (C.D. Cal. Jan. 23, 2015) 2 (finding that ALJ gave clear and convincing reason for 3 discrediting claimant’s testimony when she alleged difficulty 4 with paying attention but answered questions at hearing “cogently 5 and rationally without undue hesitation”). 6 The ALJ also discredited Plaintiff’s allegations because the 7 record showed that her treatments were “essentially routine and 8 conservative in nature.” 9 more aggressive treatment[,] surgical intervention or even a (AR 16.) Specifically, the “lack of 10 referral to a specialist” suggested that her symptoms and 11 limitations were not as severe as she alleged. 12 Plaintiff did in fact see several specialists — two orthopedic 13 surgeons for her knee, shoulders, elbows, and arms (see AR 372) 14 and a specialist in physical medicine and rehabilitation for her 15 neck (see AR 443, 447) — none of them recommended surgery (see AR 16 371-74, 415-17, 443-48). 17 she had surgery in October 2011 to “take her meniscus out” (AR 18 46), but the record contains no medical evidence of such a 19 surgery. 20 “walk better” after injections to her knee (AR 371-72) and had 21 “good pain relief” from injections to her neck (AR 443, 447). 22 (Id.) Although Plaintiff testified at the hearing that Additionally, Plaintiff “responded well” and could Although some courts have held that injections do not 23 constitute conservative treatment, those cases involved claimants 24 whose pain was treated (generally ineffectively) with a series of 25 regular injections and more invasive procedures. 26 Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) 27 (treatment with narcotic pain medication, occipital nerve blocks, 28 trigger-point injections, and cervical-fusion surgery not 13 See, e.g., 1 conservative); Christie v. Astrue, No. CV 10-3448-PJW, 2011 WL 2 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (treatment with 3 “narcotic pain medication, steroid injections, trigger point 4 injections, epidural shots, and cervical traction” not 5 conservative); Samaniego v. Astrue, No. EDCV 11-865 JC, 2012 WL 6 254030, at *4 (C.D. Cal. Jan. 27, 2012) (treatment not 7 conservative when claimant was treated “on a continuing basis” 8 with steroid and anesthetic “trigger point injections,” 9 occasional epidural injections, and narcotic medication and 10 doctor recommended “significantly invasive surgery”); Huerta v. 11 Astrue, No. EDCV 07-1617-RC, 2009 WL 2241797, at *4 (C.D. Cal. 12 July 22, 2009) (treatment by surgery and “a series of epidural 13 steroid injections into [claimant’s] cervical spine” not 14 conservative). 15 needed and not as part of a regular treatment plan that also 16 involved more aggressive treatment, like surgery. 17 Here, Plaintiff received injections only as That Plaintiff received only conservative care was a clear 18 and convincing basis on which to discount her complaints of 19 disabling pain. 20 (9th Cir. 2008) (that claimant “did not seek an aggressive 21 treatment plan” and had favorable response to conservative 22 treatment with physical therapy, transcutaneous-electrical-nerve- 23 stimulation unit, lumbosacral corset, and anti-inflammatory 24 medication undermined allegations of disabling impairment); 25 Parra, 481 F.3d at 751 (evidence of conservative treatment 26 sufficient to discount claimant’s testimony regarding severity of 27 impairment); Walter v. Astrue, No. EDCV 09–1569 AGR, 2011 WL 28 1326529, at *3 (C.D. Cal. Apr. 6, 2011) (ALJ permissibly See Tommasetti v. Astrue, 533 F.3d 1035, 1040 14 1 discredited claimant’s allegations based on conservative 2 treatment consisting of medication, physical therapy, and 3 injection). 4 Plaintiff’s occasional injections constituted nonconservative 5 care, any error was harmless given that she provided other, 6 acceptable reasons for discrediting Plaintiff. 7 533 F.3d at 1162-63 (finding error harmless when ALJ cited other 8 reasons to support credibility determination). 9 Even if the ALJ erred on this basis because See Carmickle, The ALJ also discounted Plaintiff’s testimony because her 10 daily activities were “not limited to the extent one would 11 expect, given the complaints of disabling symptoms and 12 limitations.” 13 she was “able to drive okay” and stand for an hour without 14 needing to sit. 15 Questionnaire that she could drive for 30 to 45 minutes, walk at 16 the mall, and wash dishes every day.5 17 noted, “[s]ome of the physical and mental abilities and social 18 interactions required in order to perform these activities are 19 the same as those necessary for obtaining and maintaining 20 employment.” 21 Plaintiff’s testimony on this basis as well. 22 F.3d at 1112 (ALJ may discredit claimant’s testimony when 23 “claimant engages in daily activities inconsistent with the 24 alleged symptoms” (citing Lingenfelter, 504 F.3d at 1040)); id. 25 at 1113 (ALJ may discredit claimant’s testimony when claimant (AR 16.) For example, Plaintiff testified that (AR 41.) (AR 16.) She also indicated in her Exertion (AR 224-25.) As the ALJ The ALJ was entitled to discredit See Molina, 674 26 27 5 28 In March 2011, Plaintiff told a psychiatrist that she “enjoys going to movies, concerts and yoga.” (AR 405.) 15 1 “reports participation in everyday activities indicating 2 capacities that are transferable to a work setting”). 3 In sum, the ALJ provided clear and convincing reasons for 4 finding Plaintiff partially credible. 5 were supported by substantial evidence, this Court may not engage 6 in second-guessing. 7 not entitled to remand on this ground. 8 B. See Thomas, 278 F.3d at 959. Plaintiff is The ALJ Properly Found that Plaintiff’s Impairments Did Not Meet or Equal Listing 1.03 9 10 Because those findings Plaintiff contends that her impairments met or equaled 11 Listing 1.03 and the ALJ therefore erred in finding that her 12 impairments did not meet or equal a listing. 13 14 1. (J. Stip. at 3-10.) Applicable law At step three of the sequential evaluation process, the ALJ 15 must evaluate the claimant’s impairments to see if they meet or 16 medically equal those in the Listings. 17 416.920(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 18 1999). 19 they are irrebuttably presumed disabling, without any specific 20 finding as to the claimant’s ability to perform his past relevant 21 work or any other jobs.” 22 See §§ 404.1520(d), Listed impairments are those that are “so severe that Lester, 81 F.3d at 828. The claimant has the initial burden of proving that an 23 impairment meets or equals a listing. See Sullivan v. Zebley, 24 493 U.S. 521, 530-31 (1990). 25 claimant must establish that he or she meets each characteristic 26 of a listed impairment relevant to his or her claim.” 27 180 F.3d at 1099 (emphasis in original). 28 impairment, a claimant must establish symptoms, signs and “To meet a listed impairment, a 16 Tackett, “To equal a listed 1 laboratory findings ‘at least equal in severity and duration’ to 2 the characteristics of a relevant listed impairment, or, if a 3 claimant’s impairment is not listed, then to the listed 4 impairment ‘most like’ the claimant’s impairment.” 5 § 404.1526) (emphasis in original). 6 moreover, “must be based on medical findings”; “[a] generalized 7 assertion of functional problems is not enough to establish 8 disability at step three.” 9 Id. (quoting Medical equivalence, Id. at 1100 (citing § 404.1526). An ALJ “must evaluate the relevant evidence before 10 concluding that a claimant’s impairments do not meet or equal a 11 listed impairment.” 12 2001). 13 to satisfy every different section of the listing of 14 impairments.” 15 Cir. 1990). 16 supporting her conclusion only in other sections of her decision. 17 See id. at 1200-01 (finding no error when ALJ failed to state or 18 discuss evidence supporting conclusion that claimant’s 19 impairments did not satisfy Listing but “made a five page, 20 single-spaced summary of the record”); Lewis, 236 F.3d at 512-13 21 (ALJ required “to discuss and evaluate the evidence that supports 22 his or her conclusion,” but no error when ALJ does not “do so 23 under the heading ‘Findings’”). 24 required to discuss the combined effects of a claimant’s 25 impairments or compare them to any listing in an equivalency 26 determination, unless the claimant presents evidence in an effort 27 to establish equivalence.” 28 Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. The ALJ need not, however, “state why a claimant failed Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th The ALJ does not err by discussing the evidence Moreover, the ALJ “is not Burch, 400 F.3d at 683. An ALJ’s decision that a claimant did not meet a listing 17 1 must be upheld if it was supported by “substantial evidence.” 2 See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 3 Cir. 2006). 4 but less than a preponderance; it is such relevant evidence as a 5 reasonable mind might accept as adequate to support a 6 conclusion.” 7 1997) (per curiam) (citing Andrews v. Shalala, 53 F.3d 1035, 1039 8 (9th Cir. 1995)). 9 rational interpretation, the Court must uphold the ALJ’s 10 conclusion. Substantial evidence is “more than a mere scintilla Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. When evidence is susceptible of more than one Id. 11 In order to meet Listing 1.03, a claimant must establish 12 “[r]econstructive surgery or surgical arthrodesis6 of a major 13 weight-bearing joint, with inability to ambulate effectively 14 . . . and return to effective ambulation did not occur, or is not 15 expected to occur, within 12 months of onset.” 16 404, subpt. P, app. 1 § 1.03. 17 effectively” means “an extreme limitation of the ability to walk; 18 i.e., an impairment(s) that interferes very seriously with the 19 individual’s ability to independently initiate, sustain, or 20 complete activities.” 21 show that she was unable to “sustain[] a reasonable walking pace 22 over a sufficient distance to be able to carry out activities of 23 daily living” — for example, that she required an assistive 24 device limiting the use of both upper extremities, such as a 20 C.F.R. pt. “[I]nability to ambulate Id. § 1.00(B)(2)(b)(1). The claimant must 25 26 27 28 6 Arthrodesis is the surgical fusion of bones for replacing or repairing damaged joints. See Osteoarthritis, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/000423.htm (last updated Feb. 8, 2015); see also Stedman’s Medical Dictionary, supra, at 149. 18 1 walker, two crutches, or two canes; could not “walk a block at a 2 reasonable pace on rough or uneven surfaces”; could not use 3 public transportation; or could not carry out routine walking 4 activities, “such as shopping and banking.” 5 § 1.00(B)(2)(b)(2). 6 2. See id. Analysis In finding that Plaintiff’s impairments did not meet or 7 8 equal a listing, the ALJ noted that she considered “all the 9 impairments specifically Listings 1.02, 1.04, and 11.00.” (AR 10 13.) 11 recorded findings equivalent in severity to the criteria of any 12 listed impairment, nor does the evidence show medical findings 13 that are the same or equivalent to those of any listed 14 impairment.” 15 She explained, “No treating or examining physician has (Id.) The ALJ did not err in failing to specifically explain her 16 step-three finding as to Listing 1.03. As an initial matter, 17 Plaintiff never argued at the hearing that she met or equaled 18 Listing 1.03. 19 give opening statement)); Burch, 400 F.3d at 683 (ALJ not 20 required to discuss whether impairments equal listing unless 21 claimant “presents evidence in an effort to establish 22 equivalence”). 23 medical evidence at step four provided adequate factual support 24 for her finding. 25 (finding no error in failure to discuss why claimant’s 26 impairments did not satisfy listing because ALJ’s four-page 27 evaluation of evidence was adequate statement of factual 28 foundations); Nance v. Colvin, No. CV 13-4633-DFM, 2014 WL (See AR 34-35 (Plaintiff’s counsel declining to Moreover, the ALJ’s seven-page discussion of the (AR 14-20); Gonzalez, 914 F.2d at 1200-01 19 1 3347027, at *2-3 (C.D. Cal. July 8, 2014) (ALJ did not err in 2 failing to discuss Listing 1.03 when he found that claimant did 3 not meet or equal listings 1.02, 1.04, or 3.03 and reviewed 4 claimant’s medical history in detail). 5 Plaintiff’s reliance on Marcia v. Sullivan, 900 F.2d 172, 6 174 (9th Cir. 1990) (J. Stip. at 8-9), is misplaced. 7 Ninth Circuit has observed, “Marcia simply requires an ALJ to 8 discuss and evaluate the evidence that supports his or her 9 conclusion; it does not specify that the ALJ must do so under the Lewis, 236 F.3d at 513. As the 10 heading ‘Findings.’” 11 ALJ thoroughly discussed the medical evidence in step four. As discussed, the 12 In any event, Plaintiff fails to establish that she had 13 reconstructive surgery or surgical arthrodesis on a major weight- 14 bearing joint as required under Listing 1.03. 15 Section V.A, none of Plaintiff’s treating physicians recommended 16 surgery, and the record contains no evidence of the October 2011 17 meniscus-removal surgery about which Plaintiff testified at the 18 hearing.7 19 knee reconstruction or fusion. 20 (finding that claimant had failed to show that knee arthroscopies 21 involved reconstruction or surgical arthrodesis because they 22 appeared to be “minimally invasive” surgeries). 23 asked by the ALJ if her surgery was a “total knee replacement,” 24 Plaintiff said no. 25 she satisfied Listing 1.03’s first requirement. As discussed in In any event, meniscus removal is not equivalent to (AR 46.) See Nance, 2014 WL 3347027, at *3 Indeed, when Thus, Plaintiff has not shown that 26 27 7 28 Plaintiff did not submit any additional evidence to the Appeals Council. (See AR 6.) 20 1 Plaintiff also fails to establish that she was unable to 2 walk effectively. After falling and hurting her right knee in 3 October 2009, Plaintiff was treated with pain medication and 4 therapy. 5 was normal and that heel and toe walking were normal for both 6 legs. 7 again until November 2010. 8 orthopedic surgeon, noted that Plaintiff’s right knee “was a new 9 problem to [him]” and that his earlier treatment notes involved (See AR 310-13.) (AR 312.) A doctor noted that Plaintiff’s gait Plaintiff did not complain about knee pain (See AR 445-47.) John Chase, an 10 only Plaintiff’s neck and upper extremities. 11 examining her right knee, he indicated, “no objective findings of 12 abnormality.” 13 orthopedic surgeon, diagnosed chondromalacia patella8 grade 3, 14 treated Plaintiff’s right knee with corticosteroid injections, 15 and advised her to apply an ice pack and take extra-strength 16 Tylenol, Advil, or Aleve for pain relief. 17 2, 2011, Dr. Rambach noted that Plaintiff “responded well” to the 18 injection and could “walk better.” 19 additional injection on March 16, 2011. 20 does not contain any other medical evidence regarding her right 21 knee. 22 (AR 446.) (AR 445.) After On December 29, 2010, Baer Rambach, an (AR 374.) (AR 371-72.) On February She received an (AR 371.) The record Although Plaintiff stated in her Exertion Questionnaire that 23 she had used a walker, crutches, and a cane to get to work, she 24 also specified that she used them “when [her] leg hurts a lot,” 25 26 27 28 8 Chondromalacia patella is a general term for describing damage to the cartilage under the kneecap. See Chrondromalacia patella, Mayo Clinic, http://www.mayoclinic.org/diseasesconditions/chondromalacia-patella/basics/definition/ con-20025960?p=1 (last updated Feb. 5, 2013). 21 1 failing to indicate how often her leg pain required her to use 2 the devices. 3 walker, cane, or crutches or indicated that Plaintiff needed them 4 to walk. 5 Plaintiff only partially credible and discounted her allegations 6 of disabling pain in her right knee. 7 evidence fails to show that Plaintiff was unable to walk 8 effectively. 9 (AR 226.) Moreover, no physician prescribed a And as discussed in Section V.A, the ALJ properly found (See AR 15-17.) Such Plaintiff argues that the ALJ’s RFC finding that she should 10 “avoid” uneven terrain establishes an inability to walk 11 effectively. 12 that Plaintiff should avoid walking on uneven terrain as part of 13 her work, not that she couldn’t do so at all.9 14 Moreno v. Astrue, 444 F. App’x 163, 164 (9th Cir. 2011) (finding 15 that claimant’s limitation to walking on even terrain did not 16 establish inability to walk effectively because RFC “did not 17 state that [claimant] was incapable of walking on uneven 18 surfaces, only that he should avoid doing so in his employment”); 19 Nance, 2014 WL 3347027, at *4 (finding that inability to walk on 20 uneven terrain, by itself, does not establish inability to walk 21 effectively under Listing 1.03). 22 that she was “able to drive okay” and stand for one hour (AR 41), 23 and she stated in her Exertion Questionnaire that she could drive 24 for 30 to 45 minutes, walk at the mall, wash dishes every day, 25 and go grocery shopping once a week (AR 224-25). (J. Stip. at 6-7; see AR 14.) But the ALJ found (AR 14); see Further, Plaintiff testified Thus, contrary 26 27 28 9 As structured, the relevant sentence in the ALJ’s decision actually says that Plaintiff should avoid “concentrated exposure” to “walking on uneven terrain,” among other things. (AR 14.) 22 1 to one of the Listing’s examples of ineffective ambulation, 2 Plaintiff was able “to carry out routine ambulatory activities, 3 such as shopping and banking.” 4 1 § 1.00(B)(2)(b)(2). 5 20 C.F.R. pt. 404, subpt. P, app. Plaintiff also argues that the ALJ failed to properly 6 consider her obesity in evaluating whether she met a listing. 7 (J. Stip. at 7-8.) 8 effect of a claimant’s obesity upon her other impairments and 9 ability to work. As a general rule, an ALJ must determine the Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 10 2003); see also SSR 02–1p, 2002 WL 34686281, at *3-7 (Sept. 12, 11 2002) (requiring ALJ to consider effects of obesity at several 12 points in five-step sequential evaluation). 13 “evaluate each case based on the information in the case record,” 14 as obesity may or may not increase the severity or functional 15 limitations of other impairments. 16 at *6. 17 An ALJ must SSR 02–1p, 2002 WL 34686281, Here, the ALJ confirmed Plaintiff’s height and weight at the 18 hearing (AR 40), and in her decision she observed that Plaintiff 19 “has a history of obesity” and that her weight of 160 pounds and 20 height of five feet resulted in a body-mass index of 31.2 (AR 21 12). 22 considered the potential impact of obesity in causing or 23 contributing to co-existing impairments.” 24 concluded that “there [wa]s no evidence of any specific or 25 quantifiable impact on pulmonary, musculoskeletal, endocrine, or 26 cardiac functioning.” 27 Plaintiff’s obesity was not a severe impairment. 28 further noted that in determining Plaintiff’s RFC, she had In her step-two finding, she stated that she “ha[d] (Id.) (AR 13.) The ALJ then Accordingly, she found that 23 (Id.) She 1 considered Plaintiff’s obesity’s “impact on her ability to 2 ambulate as well as her other body systems.” 3 except for a passing comment that she had been gaining weight 4 because her knee pain kept her from exercising (AR 46), Plaintiff 5 did not present any testimony or other evidence that her obesity 6 impaired her ability to work (see AR 35-50). 7 reasons, Plaintiff has not shown that the ALJ failed to consider 8 her obesity or that she was prejudiced as a result. 9 400 F.3d at 684 (finding that ALJ did not err in failing to (Id.) Moreover, For all these See Burch, 10 consider obesity at step three because claimant did not point to 11 “any evidence of functional limitations due to obesity which 12 would have impacted the ALJ’s analysis,” and only evidence 13 relating to obesity was “notes from doctors who observed weight 14 gain, indicated that [claimant] is obese, and recommended that 15 she participate in a medically supervised weight loss program.”). 16 Plaintiff is not entitled to remand on this ground. 17 18 19 20 21 22 23 24 25 26 27 28 24 1 2 VI. CONCLUSION Consistent with the foregoing, and under sentence four of 42 3 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 5 request for remand, and DISMISSING this action with prejudice. 6 IT IS FURTHER ORDERED that the Clerk serve copies of this Order 7 and the Judgment on counsel for both parties. 8 9 DATED: October 9, 2015 10 ________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 That 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.”
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