Bridgette Y Walker v. Carolyn W Colvin, No. 5:2014cv02647 - Document 25 (C.D. Cal. 2015)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott 4 . IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this case with prejudice. [See Order for details.] (san)

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Bridgette Y Walker v. Carolyn W Colvin Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 BRIDGETTE Y. WALKER, Plaintiff, 13 14 v. CAROLYN W. COLVIN, 15 Acting Commissioner of Social Security, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 14-02647-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On December 31, 2014, Bridgette Y. Walker (“Plaintiff” or “Claimant”) filed a complaint 20 seeking review of the decision by the Commissioner of Social Security (“Commissioner”) 21 denying Plaintiff’s application for Social Security Disability Insurance benefits. The 22 Commissioner filed an Answer on May 11, 2015. On September 2, 2015, the parties filed a 23 Joint Stipulation (“JS”). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed bef ore this 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record (“AR”), 26 the Court concludes that the Commissioner’s decision must be affirmed and this case 27 dismissed with prejudice. 28 Dockets.Justia.com 1 BACKGROUND 2 Plaintiff is a 49-year-old female who applied for Social Security Disability Insurance 3 benefits on September 13, 2011, alleging disability beginning July 12, 2009. (AR 10.) The ALJ 4 determined that Plaintiff did not engage in substantial gainful activity during the period from her 5 alleged onset date of July 12, 2009, through her date last insured of December 31, 2012. (AR 6 12.) 7 Plaintiff’s claim was denied initially on March 30, 2012, and on reconsideration on 8 January 14, 2013. (AR 10.) Plaintiff filed a timely request for hearing, which was held before 9 Administrative Law Judge (“ALJ”) Jay E. Levine on June 12, 2013, in San Bernardino, 10 California. (AR 10.) Plaintiff appeared and testified at the hearing and was represented by 11 counsel. (AR 10.) Vocational expert (“VE”) Sandra M. Fioretti also appeared and testified at 12 the hearing. (AR 10.) 13 The ALJ issued an unfavorable decision on July 2, 2013. (AR 10-21.) The Appeals 14 Council denied review on November 5, 2014. (AR 1-3.) DISPUTED ISSUES 15 16 As reflected in the Joint Stipulation, Plaintiff raises only the following disputed issue as a 17 ground for reversal and remand: 18 19 20 1. Whether the ALJ properly assessed Plaintiff’s credibility. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 21 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 22 Chater, 80 F.3d 1273 , 1279 (9th Cir. 1996); see also DeLorm e v. Sullivan, 924 F.2d 841, 846 23 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 24 based on the proper legal standards). 25 Substantial evidence means “‘more than a mere scintilla,’ but less than a 26 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 27 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 28 2 1 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 2 401 (internal quotation marks and citation omitted). 3 This Court must review the record as a whole and consider adverse as well as 4 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). W here 5 evidence is susceptible to more than one rational interpretation, the ALJ’s decision m ust be 6 upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 7 “However, a reviewing court must consider the entire record as a whole and may not affirm 8 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 9 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v . Astrue, 495 10 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 11 12 The Social Security Act defines disability as the “inability to engage in any substantial 13 gainful activity by reason of any medically determinable physical or mental impairment which 14 can be expected to result in death or . . . can be expected to last for a continuous period of not 15 less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 16 established a five-step sequential process to determine whether a claimant is disabled. 20 17 C.F.R. §§ 404.1520, 416.920. 18 The first step is to determine whether the claimant is presently engaging in substantial 19 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 20 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 21 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 22 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 23 significantly limit the claimant’s ability to work. Smolen, 80 F.3d at 1290. Third, the ALJ must 24 determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. 25 Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d at 746. If the impairment 26 meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 27 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the 28 3 1 claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2 2001). 3 Before making the step four determination, the ALJ first must determine the claimant’s 4 residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is “the most [one] can 5 still do despite [his or her] limitations” and represents an assessment “based on all the relevant 6 evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). T he RFC must consider all of the 7 claimant’s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 8 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 9 If the claimant cannot perform his or her past relevant work or has no past relevant work, 10 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 11 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 12 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 13 consistent with the general rule that at all times the burden is on the claimant to establish his or 14 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 15 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 16 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). T o support 17 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 18 demonstrating that other work exists in significant numbers in the national economy that the 19 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 20 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 21 entitled to benefits. Id. 22 23 THE ALJ DECISION In this case, the ALJ determined at step one of the sequential process that Plaintiff has 24 not engaged in substantial gainful activity during the period from her alleged onset date of July 25 12, 2009, through her date last insured of December 31, 2012. (AR 12.) 26 At step two, the ALJ determined that Plaintiff has the following medically determinable 27 severe impairments: morbid obesity, type 2 diabetes, osteoarthritis in back and joints; 28 polysubstance abuse in remission. (AR 12.) 4 1 At step three, the ALJ determined that Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals the severity of one of the listed 3 impairments. (AR 12-15.) 4 The ALJ then found that Plaintiff, through the date last insured, had the RFC to perf orm 5 less than a full range of sedentary work as defined in 20 C.F.R. § 404.1567(a) with the 6 following limitations: 7 Claimant can lift and/or carry 10 pounds occasionally and less than 10 8 pounds frequently; she can stand and/or walk for six hours out of an eight- 9 hour workday with regular breaks; she can sit for six hours out of an eight- 10 hour workday with regular breaks; she is unlimited with respect to pushing 11 and/or pulling, other than as indicated for lifting and/or carrying; she is 12 precluded from working at unprotected heights, in temperature extremes, 13 with vibration; Claimant cannot climb ladders or balance; Claimant can 14 occasionally stoop and bend; Claimant cannot engage in forceful gripping or 15 grasping with both hands. 16 (AR 15-19.) In determining the above RFC, the ALJ made an adverse credibility determination. 17 (AR 17.) 18 At step four, the ALJ found that Plaintiff, through the date last insured, was unable to 19 perform her past relevant work as a security guard, a child monitor, and a cafeteria counter 20 attendant. (AR 19.) The ALJ, however, also found that, considering Claimant’s age, education, 21 work experience, and RFC, there are jobs that existed in significant numbers in the national 22 economy that Claimant, through the date last insured, could have performed, including the jobs 23 of assembler, order clerk, and optical assembler. (AR 19-20.) 24 Consequently, the ALJ found that, within the meaning of the Social Security Act, 25 Claimant was not disabled at any time from July 12, 2009, the alleged onset date, through 26 December 31, 2012, the date last insured. (AR 20.) 27 /// 28 /// 5 DISCUSSION 1 2 Plaintiff contends that the ALJ erred in discounting her subjective pain symptoms. The 3 Court disagrees. 4 A. Relevant Federal Law 5 The ALJ’s RFC is not a medical determination but an administrative finding or legal 6 decision reserved to the Commissioner based on consideration of all the relevant evidence, 7 including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 8 C.F.R. § 1527(e). In determining a claimant’s RFC, an ALJ must consider all relevant evidence 9 in the record, including medical records, lay evidence, and the effects of symptoms, including 10 pain reasonably attributable to the medical condition. Robbins, 446 F.3d at 883. 11 The test for deciding whether to accept a claimant’s subjective symptom testimony turns 12 on whether the claimant produces medical evidence of an impairment that reasonably could be 13 expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 14 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Sm olen, 80 15 F.3d at 1281-82 esp. n.2. The Commissioner may not discredit a claimant’s testimony on the 16 severity of symptoms merely because they are unsupported by objective medical evidence. 17 Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant’s pain 18 testimony not credible, the ALJ “must specifically make findings which support this conclusion.” 19 Bunnell, 947 F.2d at 345. The ALJ must set forth “findings sufficiently specific to permit the 20 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas, 278 21 F.3d at 958; see also Rollins, 261 F.3d at 856-57; Bunnell, 947 F.2d at 345-46. Unless there is 22 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of a 23 claimant’s symptoms only by offering “specific, clear and convincing reasons for doing so.” 24 Smolen, 80 F.3d at 1283-84; see also Reddick, 157 F.3d at 722. The ALJ must identify what 25 testimony is not credible and what evidence discredits the testimony. Reddick, 157 F.3d at 26 722; Smolen, 80 F.3d at 1284. 27 /// 28 /// 6 1 B. 2 In determining Plaintiff’s RFC, the ALJ concluded that Plaintiff’s medically determinable Analysis 3 impairments reasonably could be expected to cause some of the alleged symptoms. (AR 17.) 4 The ALJ, however, also found that Plaintiff’s statements regarding the intensity, persistence, 5 and limiting effects of these symptoms were “not entirely credible.” (AR 17.) Because the ALJ 6 did not make any finding of malingering, he was required to provide clear and convincing 7 reasons supported by substantial evidence for discounting Plaintiff’s credibility. Smolen, 80 8 F.3d at 1283-84; Tommasetti v. Astrue, 533 F.3d 1635, 1639-40 (9th Cir. 2008). T he ALJ did 9 so. 10 First, the ALJ found that Plaintiff’s allegations of disabling pain are not supported by the 11 objective medical evidence. (AR 17, 19.) An ALJ is permitted to consider whether there is a 12 lack of medical evidence to corroborate a claimant’s alleged pain symptoms so long as it is not 13 the only reason for discounting a claimant’s credibility. Burch v. Barnhart, 400 F.3d 676, 68014 81 (9th Cir. 2005). Here, four consulting examiners all provided RFCs for light work. (AR 13, 15 17-19.) In March 2012, Dr. Sean To, an internist, diagnosed diabetes, degenerative joint 16 disease, joint pain and knee pain, hypertension, and morbid obesity. (AR 18.) Nonetheless, he 17 found only mild tenderness in the cervical spine, no evidence of swelling, effusion, erythema, 18 warmth or deformity, and only moderate to mild tenderness in the knees. (AR 18.) He 19 assessed a light work RFC with limitations. (AR 18.) In October 2012, Dr. Robin Alleyne, an 20 internist, diagnosed pain, diabetes, and manic depression. (AR 18.) She also assessed a light 21 work RFC with limitations. (AR 18.) State agency medical consultants also opined Plaintiff 22 physically could perform a reduced range of light or sedentary work. (AR 18.) Two consulting 23 psychiatrists found no significant mental limitations, as did a State agency consultant. (AR 1424 15.) There is no medical source statement from any physician that suggests functional 25 restrictions more restrictive than those in the ALJ’s RFC. (AR 13, 17-18.) 26 Although Plaintiff does not challenge the medical source statements summarized above, 27 she does contend that the ALJ ignored her obesity and the limitations that result from her 28 obesity. Ms. Walker’s statements about her subjective symptoms mostly relate to her obesity. 7 1 Plaintiff , however, is incorrect that the ALJ ignored her obesity. The ALJ found that Plaintiff’s 2 obesity is a severe impairment. (AR 12.) The ALJ specifically stated, “The claimant’s weight, 3 including the impact of her ability to ambulate as well as her other body systems, has been 4 considered within the functional limitations determined herein.” (AR 12.) The ALJ noted Dr. To 5 diagnosed morbid obesity but nonetheless assessed a light work RFC. (AR 18.) The ALJ also 6 noted that in August 2012 Plaintiff lost 60 pounds following bariatric surgery but continued to 7 experience persistent knee pain. (AR 17.) Nonetheless, Dr. Alleyne in October 2012 assessed 8 Plaintiff with a light work RFC. (AR 18.) The ALJ plainly considered Plaintiff’s obesity and its 9 impact on her functioning, and accounted for it in his RFC, reducing her RFC from light to 10 sedentary. 11 The second reason the ALJ gave for discounting Plaintiff’s subjective symptoms is that 12 Plaintiff’s treatment has been conservative. (AR 16.) An ALJ may consider conservative 13 treatment in evaluating credibility. Tommasetti, 533 F.3d at 1039. Here, the ALJ concluded 14 that the Claimant has not generally received the type of medical treatment one would expect for 15 a totally disabled individual. (AR 16.) With respect to her alleged mental impairments, the ALJ 16 found that Claimant was taking no medications and admitted she has not had psychiatric 17 symptoms since she stopped taking drugs. (AR 14.) The ALJ also documented that Plaintiff 18 testified she did not require psychological counseling or psychiatric medications. (AR 16.) An 19 ALJ may consider a failure to seek treatment or a failure to follow prescribed treatment as a 20 basis for discounting credibility. Orn, 495 F.3d at 638. W ith respect to her physical 21 impairments, the ALJ noted that Claimant underwent bariatric surgery which was generally 22 successful in relieving symptoms. (AR 16.) 23 Plaintiff disputes the ALJ’s assessment of the medical evidence and the adverse 24 credibility finding, but it is the ALJ who has the responsibility to resolve disputes about the 25 medical evidence and other ambiguities in the record. Andrews, 53 F.3d at 1039. W here the 26 ALJ’s interpretation of the record evidence is reasonable as it is here, it should not be second27 guessed. Rollins, 261 F.3d at 857. 28 8 1 The ALJ rejected Plaintiff’s subjective symptom testimony for clear and convincing 2 reasons supported by substantial evidence. *** 3 4 The ALJ’s RFC is supported by substantial evidence. The ALJ’s nondisability 5 determination is supported by substantial evidence and free of legal error. 6 ORDER 7 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 8 Commissioner of Social Security and dismissing this case with prejudice. 9 10 11 DATED: October 13, 2015 12 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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