Phyllis Elaine Collins v. Carolyn W. Colvin, No. 5:2015cv00149 - Document 22 (C.D. Cal. 2015)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)
Download PDF
<![CDATA[
Phyllis Elaine Collins v. Carolyn W. Colvin Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PHYLLIS ELAINE COLLINS, 12 13 Case No. EDCV 15-0149 (SS) Plaintiff, v. MEMORANDUM DECISION AND ORDER 14 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Phyllis Elaine Collins (“Plaintiff”) seeks review 22 of the final decision of the Commissioner of the Social Security 23 Administration (the “Commissioner” or the “Agency”) denying her 24 application 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of 26 the undersigned United States Magistrate Judge. 27 stated below, the decision of the Commissioner is AFFIRMED. for Disability Insurance Benefits. The parties For the reasons 28 Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed Benefits an application II Disability Insurance 6 Record 7 disability onset date of March 15, 2010. 8 denied Plaintiff’s application initially on October 5, 2012, and 9 upon reconsideration on March 5, 2013. 22). In on Title 5 (“AR”) (“DIB”) for the May 12, 2012. application, (Administrative Plaintiff (Id.). (Id.). alleged a The agency On April 8, 2013, 10 Plaintiff requested a hearing before an Administrative Law Judge 11 (“ALJ”). 12 Levine, on October 3, 2013. 13 2013, the ALJ issued a decision denying Plaintiff benefits. 14 19, 15 decision, which the Appeals Council denied on December 2, 2014. 16 (Complaint at 2). 17 on January 23, 2015. 28). (Id.). Plaintiff testified before the ALJ, Jay E. Plaintiff (Id. at 22, 28). requested timely On October 31, review of the (AR ALJ’s Plaintiff then filed an action in this Court (Case No. 15-0149 SS). 18 19 III. 20 FACTUAL BACKGROUND 21 22 Plaintiff was born on July 5, 1954. (AR 59). Plaintiff was 23 fifty-five years old at the time of her alleged disability onset 24 date, 25 hearing before the ALJ. 26 from high school and has no job or vocational training other than 27 on-the-job-training. (AR 59), and fifty-nine years (AR 35). (AR 35-36). 28 2 old at the time of her Plaintiff did not graduate Plaintiff worked for twenty- 1 five years at a cord factory making electrical cords.1 2 Plaintiff’s job required a significant amount of standing and 3 lifting of objects weighing ten pounds or more. 4 178). 5 went out of business. 6 from 2006 to 2008 and then briefly operated “a little day care” 7 in her home in 2009, but she stopped operating the day care after 8 having difficulty standing and being able to walk children to and 9 from school. (AR 36). (AR 36, 44, Plaintiff stopped working in 2005 after the cord factory (AR 37, 176). (AR 37). Plaintiff was unemployed Plaintiff alleges an onset of disability 10 due to pain in her knees, hips, shoulders and elbows, arthritis, 11 hypertension, headaches, depression and anxiety. 12 the 13 Benefits Application, Plaintiff lists “uncontrolled high blood 14 pressure” 15 limiting her ability to work. Disability and Report pain in accompanying “both the knees” (AR 39-44). Disability as physical In Insurance conditions (AR 59). 16 17 A. Medical History 18 1. 19 Arrowhead Regional Medical Center 20 On January 23, 2010, Plaintiff went to the emergency room 21 22 due to severe pain in both knees. 23 physician prescribed “Norco,” a pain medication. 24 physician’s 25 1 26 27 28 final impression was (AR 219). “left The emergency room (AR 220). hip/knee” pain The and The vocational expert elicited testimony that Plaintiff took orders from customers, read blueprints, and made coils. (AR 38). Plaintiff also intermittently worked as a lead worker and supervised five people when the lead worker went on vacation; in that role, coordinating shipping, tracking and payments were among Plaintiff’s responsibilities. (Id.). 3 1 degenerative joint disease. 2 doctor’s visit, Plaintiff also complained of knee pain. 3 247). (AR 221). During a June 27, 2011, (AR 4 From February 2010 to March 2013, Plaintiff’s primary care 5 ordered Arrowhead’s 6 physician, 7 Radiology 8 laboratory tests on Plaintiff, including MRIs and mammograms. 9 (AR 262-275). Dr. and Joachim Pathology M. Brown, D.O., departments to conduct a number of On May 23, 2012, an MRI of Plaintiff’s bilateral 10 standing knees found “mild tibial spine osteophyte.” 11 On June 6, 2012, an MRI of Plaintiff’s bilateral knees found 12 “mild osteoarthritis” of the knees. 13 note dated June 21, 2012, noted knee pain and osteoarthritis. 14 (AR 15 positive crepitus and a decreased range of motion. 16 The physician noted that throbbing in the knees increased with 17 walking and stair climbing. 18 examination 19 osteoarthritis. 243). Another of examination of (Id.). Plaintiff’s right (AR 271). (AR 272). An outpatient Plaintiff’s knees found (AR 244). On February 8, 2013, an shoulder found mild (AR 266). 20 21 2. Vincente R. Bernabe, D.O. 22 23 At the request of the Department of Social Services, 24 Plaintiff visited Dr. Bernabe for an orthopedic examination and 25 consultation in September 2012. 26 of chronic left knee pain and left hip pain. 27 noted that Plaintiff’s pain started in 2010 and had progressed 28 from an intermittent pain she felt twice a month to constant (AR 222). 4 Plaintiff complained (Id.). Dr. Bernabe 1 “throbbing” and “burning.” (Id.). 2 Plaintiff’s range of motion of her upper extremities was within 3 normal limits.2 4 hips revealed “tenderness to palpation at the greater trochanter 5 bursa of the left hip.” 6 and crepitus in the patellofemoral joint of the left knee, with 7 popping [and] tenderness at the insertion of the patellar tendon 8 into the proximal tibia.” 9 Plaintiff should be able to lift and carry with no restrictions, 10 be able to stand and walk up to six hours of an eight-hour day, 11 and have no problems sitting. (AR 224). An examination revealed that However, examination of Plaintiff’s (Id.). Dr. Bernabe also found “grinding (AR 225). Dr. Bernabe determined (AR 226). 12 13 B. Non-Examining Physicians’ Opinions 14 On October 5, 2012, Disability Determination Service (“DDS”) 15 16 medical 17 evidence 18 insufficient evidence to establish a severe impairment prior to 19 the date last insured. (AR 63-64). 20 Plaintiff’s about 21 functionally 22 substantiated by the objective medical evidence alone. 23 63). 24 her symptoms were only partially credible. 25 assigned “great” weight to the DDS consultants’ opinion. 26 27). 27 consultants to determined evaluate statements limiting Plaintiff’s the effects of there claim, was insufficient i.e. there was The doctor concluded that intensity, the persistence symptoms were and not (Id. at The doctor also noted that Plaintiff’s statements regarding Dr. Bernabe examined Plaintiff’s hands and fingers. (AR 224). 2 28 that 5 shoulders, (Id.). elbows, The ALJ (AR wrists, 1 On March 5, 2013, a DDS physician reviewed the case on 2 reconsideration and affirmed that Plaintiff was not disabled. 3 (AR 71). 4 hypertension. 5 individual 6 credible. 7 stopped working because she was laid off, not because of the 8 medical problems she alleged. The physician concluded that Plaintiff had “non-severe” The DDS physician found Plaintiff’s (AR 70). statements (AR regarding 71). The her symptoms physician observed only partially that Plaintiff (Id.). 9 10 B. Vocational Expert Testimony 11 12 Vocational Expert (“VE”) Sandra Fioretti testified at the 13 ALJ hearing regarding Plaintiff’s past work and the existence of 14 jobs 15 limitations. 16 work as “electronic assembler, developmental,” with a Dictionary 17 of Occupational Titles (“DOT”) listing of 726.261-010. 18 The 19 “semiskilled” work. that VE Plaintiff could that the given her functional The VE identified Plaintiff’s past (AR 53-57). opined perform occupation constituted (AR 53). “light” and (AR 54). 20 21 The ALJ posed three hypotheticals to the vocational expert. 22 First, the ALJ asked whether an individual who was Plaintiff’s 23 age, 24 restricted to a “medium” range of work could perform Plaintiff’s 25 past work.3 had the same (AR 54). education and work experience, and was The VE opined that such a person would be 26 27 28 3 The hypothetical individual also could not climb ladders but could handle frequent stairs, ramps, stooping or bending. (AR 54). 6 1 able to perform Plaintiff’s past work. 2 asked the VE whether such an individual could perform Plaintiff’s 3 past work if the individual: could lift or carry fifty pounds 4 occasionally and twenty-five pounds frequently; be limited to 5 standing or walking four hours out of an eight hour day; could 6 sit without problems; and could use stairs and ramps occasionally 7 and bend and stoop occasionally. 8 individual 9 However, the VE testified that such an individual could perform 10 limited work as a hand packager, with 20,000 jobs nationally and 11 1,500 12 nationally and 1,600 locally.4 could locally, not or perform as a (AR 54-55). (AR 55). Plaintiff’s machine feeder, The ALJ then The VE concluded the past work. with (Id.). 10,000 jobs (AR 55-56). 13 14 Finally, the ALJ further limited the hypothetical individual 15 to “light” work, 16 occasionally 17 Plaintiff possessed any skills that would transfer to any work 18 within the third hypothetical. 19 Plaintiff did not possess any skills that would enable her to 20 perform as the individual in hypothetical three would. 21 \\ 22 \\ 23 \\ and i.e., ten lifting pounds or carrying frequently, (AR 56). and twenty asked pounds whether The VE found that (Id.). 24 The VE emphasized that because of the hypothetical individual’s standing/walking limitation, she had to lower the number of positions available. (AR 55). She further testified that the limitation on standing and walking was not fully consistent with the medium DOT category of full ability to stand and walk, so her testimony and the reduced number of available positions was based on her own training and experience. (AR 56). 4 25 26 27 28 7 1 C. Plaintiff’s Testimony 2 3 In regards to her work history, Plaintiff testified that she 4 worked at a “cord factory” for twenty-five 5 factory closed in 2005. 6 a day care center in her home for some period of time after that. 7 (AR 37). (AR 36-37). years until the She did babysitting and ran 8 9 Plaintiff testified that beginning in March 2010, she 10 started having “problems with [her] knees and shoulders.” (AR 11 39). 12 she had arthritis. 13 her right knee, but also began feeling pain in her hip. 14 She went to the emergency room due to her hip pain, “but they 15 [were] so concerned about [her] blood pressure because [she] was 16 at stroke level . . . [so] they didn’t even do anything about the 17 hip.” 18 she used her husband’s cane to assist her in walking around the 19 house. 20 began in her right knee, she eventually starting feeling pain in 21 both knees and, even while testifying before the ALJ, stated, 22 “they’re burning.” Plaintiff was examined by a doctor who informed her that (Id.). (Id.). Plaintiff continued to feel pain in (Id.). While Plaintiff suffered from pain in her hip, (AR 48). Plaintiff testified that, although the pain (AR 40). 23 Plaintiff further testified that sometime around March 2011, 24 25 when her insured status 26 hypertension and swelling of the feet, which interfered with her 27 ability to work. 28 Plaintiff also suffered from “bad headaches.” (AR 41). lapsed, she had “uncontrollable” As a result of her hypertension, 8 (Id.). Sometimes 1 while walking, Plaintiff’s knees would suddenly “pop” and “a leg 2 would give out.”5 3 killer “other than Ibuprofen,” but she only took it once because 4 (AR 42). Plaintiff was once prescribed a pain she did not like how it made her feel.6 (AR 50). 5 6 At the time of the hearing, Plaintiff alleged that her knees to “burn constantly.”7 7 continued 8 testified that she suffer[ed] from pain in the shoulders8, and 9 elbow. (AR 43-44). (AR 42). Plaintiff also Due to the pain in her shoulders, Plaintiff 10 could not cook, blow dry her hair, or lift items she could lift 11 prior to the pain onset. 12 could no longer perform a job similar to her cord factory job as 13 that would require her constantly being on her feet. 14 She also stated that she had not had any surgeries or worn a 15 brace on her knees, shoulder or hips. (AR 45). Plaintiff opined that she (AR 47-48). (AR 49-50). 16 17 18 19 5 Initially, the pain in her knee and leg was intermittent, but by the time of the hearing, she was constantly in pain. (AR 42). 6 20 21 22 23 24 25 26 27 28 Plaintiff started taking Ibuprofen the year before the ALJ hearing. (AR 50). 7 The pain in her knee also limits the length of time Plaintiff can be on her feet. (AR 46). For example, Plaintiff testified that she could not stand on her feet for two straight hours preparing a Thanksgiving meal without taking a break to sit down. (Id.). She can only be on her feet for about forty-five minutes at a time, whereas in the past, Plaintiff could stand for two to three hours at a time. (AR 46-47). Plaintiff testified that this is due to the “constant use of doing the same thing every day” when she worked at the cord factory, which involved loading and lifting blades weighing fifty pounds or more into heavy molds with cords. Plaintiff did not file a Worker’s Compensation Claim for this injury. (AR 43-44). 8 9 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must 5 demonstrate 6 impairment that prevents her from engaging in substantial gainful 7 activity and that is expected to result in death or to last for a 8 continuous period of at least twelve months. 9 157 F.3d a 715, medically 721 (9th determinable Cir. physical 1998) or mental Reddick v. Chater, (citing 42 U.S.C. 10 § 11 incapable of performing the work she previously performed and 12 incapable of performing any other substantial gainful employment 13 that exists in the national economy. 14 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 423(d)(1)(A)). The impairment must render the claimant Tackett v. Apfel, 180 F.3d 15 16 To decide if a claimant is entitled to benefits, an ALJ 17 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 18 The steps are: 19 20 (1) Is the claimant 21 gainful activity? 22 disabled. 23 (2) Is the presently engaged in substantial If so, the claimant is found not If not, proceed to step two. claimant’s impairment 24 claimant is found not disabled. 25 severe? If not, the three. 26 27 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the specific impairments described in 20 C.F.R. Part 404, 28 10 1 Subpart P, Appendix 1? 2 disabled. 3 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? 4 If so, the claimant is found not disabled. 5 proceed to step five. 6 (5) Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, If not, the found not disabled. If so, the claimant is 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 11 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 12 (g)(1) & 416.920(b)-(g)(1). 13 14 The claimant has the burden of proof at steps one through 15 four and the Commissioner has the burden of proof at step five. 16 Bustamante, 262 F.3d at 953-54. 17 affirmative duty to assist the claimant in developing the record 18 at every step of the inquiry. 19 claimant meets her burden of establishing an inability to perform 20 past 21 perform some other work that exists in “significant numbers” in 22 the national economy, taking into account the claimant’s RFC, 23 age, education, and work experience. 24 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 25 416.920(g)(1). 26 vocational 27 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 28 (commonly known as “the grids”). work, the Commissioner Additionally, the ALJ has an Id. at 954. must show If, at step four, the that the claimant can Tackett, 180 F.3d at 1098, The Commissioner may do so by the testimony of a expert or by reference 11 to the Medical-Vocational Osenbrock v. Apfel, 240 F.3d 1 1157, 1162 (9th Cir. 2001). 2 (strength-related) and non-exertional limitations, the Grids are 3 inapplicable and the ALJ must take the testimony of a vocational 4 expert. 5 (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). Moore v. Apfel, When a claimant has both exertional 216 F.3d 864, 869 (9th Cir. 2000) 6 7 V. 8 THE ALJ’S DECISION 9 10 The ALJ employed the five-step sequential evaluation process 11 and concluded that Plaintiff was not disabled within the meaning 12 of the Social Security Act. 13 found 14 activity during the period from her alleged onset date of March 15 15, 2010 through her date last insured of March 31, 2011. 16 24). 17 determinable 18 knees and right shoulder.” 19 that 20 did 21 impairments.9 22 23 24 25 26 27 28 that Plaintiff had (AR 27-28). not engaged in At step one, the ALJ substantial gainful (AR At step two, the ALJ found that Plaintiff’s only medically impairment Plaintiff’s not was “osteoarthritis (AR 24). osteoarthritis, establish a “severe” of the bilateral However, the ALJ reasoned while medically impairment or determinable, combination of (AR 24). A physical or mental impairment is considered “severe” if it “significantly limits [the claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The ALJ wrote that “basic work activities” are the abilities and aptitudes necessary to do most jobs, including physical functions such as walking, standing, lifting, pushing, pulling, reaching, carrying, handling, or sitting; capacities for seeing, hearing and speaking; understanding, carrying out and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting. (AR 24-25). 9 12 1 The ALJ concluded although that Plaintiff’s medically 2 determinable impairments could have been reasonably expected to 3 produce the alleged symptoms, Plaintiff’s statements concerning 4 the intensity, persistence and limiting effects of the alleged 5 symptoms were not entirely credible. 6 although Plaintiff reported on a Disability Report and during the 7 hearing 8 repeatedly denied headaches to her treating physicians. 9 230 (note indicates no “HA” or headache), 246 (same)). that she suffered from (AR 25). For example, debilitating headaches, she (AR 25, Moreover, “a 10 Plaintiff 11 consideration,” but there is no mention of such a drastic medical 12 procedure 13 requiring amputation of a limb. 14 to comply with her prescribed medications10 and failed to adhere 15 to her suggested diet. 16 ALJ to reject Plaintiff’s subjective testimony. alleged in the that file amputation nor is of there her evidence (AR 25). (AR 26). right arm of a was condition Plaintiff also failed These inconsistencies lead the 17 In 18 reaching his conclusion, the ALJ gave “significant 19 weight” to Dr. Bernabe’s opinion because Dr. Bernabe “ha[d] the 20 expertise to evaluate and assess [Plaintiff’s] condition . . . 21 [and] 22 [Plaintiff].” Dr. Bernabe (AR physically 27). The examined ALJ and opined objectively that Dr. tested Bernabe’s 23 10 24 25 26 27 28 Plaintiff was prescribed narcotic pain medication, which she only used once (three years before the ALJ hearing) because she did not like the way it made her feel. (AR 26, 50). Plaintiff took Ibuprofen instead. (AR 49-50). There is no indication that she requested a different kind of narcotic pain medication. (AR 26). Additionally, no aggressive treatment was recommended or anticipated for Plaintiff’s osteoarthritis or hypertension. (Id.). Thus, the ALJ concluded that Plaintiff’s symptoms were not as severe as alleged. 13 1 opinion was “consistent and reasonable in light of the record as 2 a whole.” 3 State agency physicians, giving those opinions “great” weight. 4 (Id.). 5 assessments 6 “highly credible because they are supported by objective medical 7 evidence, 8 treatment for her conditions.” (Id.). The ALJ The ALJ also considered the opinions of two held regarding which that the Plaintiff’s shows [Plaintiff] State physicians’ agency functional received limitations only are conservative (Id.). 9 10 The ALJ concluded that Plaintiff failed to establish 11 disability on or before the date last insured, March 21, 2011. 12 (AR 26). Before March 31, 2011, Plaintiff sought treatment for 13 hypertension, but denied chest pain, shortness of breath, edema, 14 headaches 15 hypertension 16 minimized by performing strengthening exercises, wearing better 17 shoes and taking prescribed medications. 18 did not adhere to the medical advice provided, the ALJ discounted 19 the severity of her symptoms. and weakness.11 remained (Id.). uncontrolled, her Although pain Plaintiff’s could (Id.). have been As Plaintiff (Id.). 20 21 In sum, the ALJ found that Plaintiff’s physical impairments, 22 considered singly and in combination, did not significantly limit 23 Plaintiff’s ability to perform basic work activities. 24 Accordingly, Plaintiff was not under a disability as defined by 25 20 C.F.R. §404.1520(c). 26 27 28 (AR 27). (AR 27). The ALJ also considered Plaintiff’s history of obesity as a contributing factor to her co-existing impairments, but found there was no specific or quantifiable impact on pulmonary, musculoskeletal, endocrine, or cardiac functioning. (AR 26). 11 14 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. 6 aside 7 findings 8 substantial evidence in the record as a whole.” 9 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett, 10 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 11 1996)(citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). the Commissioner’s are based on denial legal of error “[The] court may set benefits or are when not the ALJ’s supported by Aukland v. 12 “Substantial evidence is more than a scintilla, but less 13 14 than a preponderance.” 15 v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 16 evidence which a reasonable person might accept as adequate to 17 support a conclusion.” 18 evidence supports a finding, the court must “‘consider the record 19 as a whole, weighing both evidence that supports and evidence 20 that detracts from the [Commissioner’s] conclusion.’” 21 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th 22 Cir. 23 affirming 24 substitute its judgment for that of the Commissioner. 25 157 F.3d at 720-21 (citing Flaten v. Sec’y of Health & Human 26 Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 27 \\ 28 \\ 1993)). or If the reversing Reddick, 157 F.3d at 720 (citing Jamerson (Id.). To determine whether substantial evidence that It is “relevant can reasonably conclusion, 15 the Aukland, support court either may not Reddick, 1 VII. 2 DISCUSSION 3 Plaintiff 4 challenges the ALJ’s decision on two grounds. 5 First, Plaintiff asserts that the ALJ erred in determining that 6 she suffers no more than a de minimis impairment. 7 Support of Plaintiff’s Complaint (“MSC”), Dkt. No. 10, at 4). 8 Plaintiff contends that the ALJ failed to give appropriate weight 9 to the medical evidence, which shows that she suffered from a 10 severe impairment that erodes her residual functional capacity. 11 (Id. at 6). (Memorandum in 12 13 Second, Plaintiff asserts that the ALJ erred in determining 14 her 15 primary basis for disability was due to her knee pain, not her 16 headaches, and the fact that she did not report her headaches to 17 her providers is irrelevant. 18 provide 19 testimony. credibility. legally (Id. at sufficient 6). Plaintiff (Id. at 8). reasons for contends that her The ALJ also did not rejecting Plaintiff’s (Id.). 20 21 This Court disagrees with Plaintiff’s contentions. First, 22 substantial evidence supports the ALJ’s findings regarding the 23 non-severity of Plaintiff’s impairments. 24 were erroneous, however, the error was harmless and the decision 25 remains legally valid. 26 F.3d 1050, 1054 (9th Cir. 2006) (harmless error rule applies to 27 review 28 Furthermore, the decision provided clear and convincing reasons of Even if those findings See Stout v. Comm’r Soc. Sec. Admin., 454 administrative decisions 16 regarding disability). 1 for rejecting Plaintiff’s subjective testimony about her pain or 2 objective evidence of her mental health status. 3 the reasons discussed below, the ALJ’s Decision is AFFIRMED. Accordingly, for 4 5 A. Substantial Evidence Supports The ALJ’s Finding of Non- ALJ must Severity 6 7 8 9 At step determine two of whether the the sequential claimant evaluation, has a the severe impairment or 10 combination of 11 performing basic 12 Yuckert, 482 U.S. 137, 141 (1987) (plaintiff bears burden of 13 proving 14 impairments which significantly limits her physical or mental 15 ability to do basic work activities). 16 de 17 Smolen, 18 impairments 19 establishes a slight abnormality that has “no more than a minimal 20 effect on an individual’s ability to work.” 21 85-28, 22 affirmed 23 treating or examining doctors ever state that the claimant is 24 disabled, 25 determinable symptoms. 26 (9th Cir. 1999) (finding no evidence to support a claim that 27 impairments 28 examining physicians never indicated that appellant was disabled, she minimis work suffers F.3d 1985 WL be 1290. found 56856, were if the to An “not at non-severity even any device at can significantly activities. from screening 80 a impairments *3 MSC at impairment dispose of impairment severe” where claimant 3; or her see from Bowen combination v. of The step two inquiry is a (1985). finding limiting groundless or only The none suffers claims. combination if the of evidence (Id.); see also SSR Ninth of Circuit the some has claimant’s apparent or Verduzco v. Apfel, 188 F.3d 1087, 1089 “severe” where 17 appellant’s treating and 1 even 2 pressure and arthritis). 3 two” may be affirmed where there is a “total absence of objective 4 evidence of severe medical impairment.” 5 F.3d 683, 686-87 (9th Cir. 2005). 6 insufficient 7 Colvin, 580 F. App’x 530, 531 (9th Cir. 2014). though he for clearly finding suffered from diabetes, high blood A finding of “no disability at step a Webb v. Barnhart, 433 A mere diagnosis alone is “severe” impairment. Febach v. 8 While it appears that doctors prescribed “Norco” for pain 9 10 after Plaintiff’s January 23, 2010 emergency room visit, 11 220), Plaintiff generally took only Ibuprofen for pain. 12 51). 13 because she “did not like how it made [her] feel.”12 14 Moreover, Plaintiff’s doctors suggested strengthening exercises 15 and wearing better shoes as treatment for her condition. 16 243). 17 inflammatory drugs suggest that Plaintiff’s symptoms are not as 18 severe as alleged. (AR (AR 49- Plaintiff refused to take stronger prescribed pain medicine (AR 49-50). (AR The conservative treatment and use of non-steroidal anti- (AR 26). 19 20 Furthermore, no aggressive treatment was recommended or 21 anticipated for Plaintiff’s osteoarthritis or her hypertension. 22 There is no objective evidence that these conditions more than 23 minimally 24 basic work activities before or after the date last insured. 25 \\ 26 \\ 27 impacted Plaintiff’s ability physically perform Plaintiff admits she does not like medication and “take[s] the pain as long as [she] can.” (AR 51). 12 28 to 18 1 The ALJ gave “significant” weight to the opinion of 2 consultative 3 determined that Plaintiff should be able to lift and carry with 4 no restrictions, be able to stand and walk up to six hours of an 5 eight-hour 6 Furthermore, she did not require assistive devices.13 7 49, 226). 8 agency physicians and gave those opinions “great” weight. 9 27). examiner day and Dr. have Bernabe. no (AR problems 27). Dr. sitting. Bernabe (AR 226). (AR 27, 48- The ALJ also considered the opinions of two State (AR The State agency physicians reviewed the medical evidence 10 and concluded that there was no evidence of Plaintiff’s having a 11 severe impairment. (AR 27, 65, 73).14 12 an impairment is “not severe” may supply a basis for an ALJ to 13 similarly conclude that an impairment is not severe. 14 F. App’x. at 531 (affirming ALJ’s reliance on three doctors’ 15 conclusions that claimant’s depression was not severe). Reports by physicians that Febach, 580 16 The total absence of objective evidence of a severe medical 17 18 impairment supported 19 Plaintiff’s impairments were not severe. 20 However, 21 erroneous, the error was harmless, as discussed more fully below. 22 \\ 23 \\ even if the the ALJ’s ALJ’s step two determination that Webb, 433 F.3d at 646. determination at step two was 24 Plaintiff testified that she used her husband’s cane for only one day in 2013. (AR 48-49). 13 25 26 27 28 14 The Disability Determination and Transmittal Forms identify a “Reg-Basis Code” of F2 (AR 65, 73), which stands for a nonsevere impairment. See POMS DI 26510.045(a), available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0426510045 19 1 B. To The Extent The ALJ Erred In Assessing Plaintiff’s Physical Impairments, Any Error Was Harmless 2 3 Even if the ALJ erred in finding Plaintiff’s impairments 4 “The burden 5 non-severe at step two, any error would be harmless. 6 is on the party claiming error to demonstrate not only the error, 7 but also that it affected his ‘substantial rights,’ which is to 8 say, not merely his procedural rights.” 9 F.3d 1047, 1054 (9th Cir. 2012). remand for error, a Ludwig v. Astrue, 681 Therefore, in deciding whether 10 to reviewing court must consider “an 11 estimation of the likelihood that the result would have been 12 different.” Id. at 1055. 13 14 The evaluation of impairments at step two is a de minimis 15 test intended to eliminate the most minor of impairments. 16 Webb, 433 F.3d at 687 (step two is a “de minimis threshold”). 17 ALJ errors in social security cases are harmless if they are 18 “inconsequential to 19 Brown-Hunter Colvin, 20 (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 21 1098 (9th Cir. 2014). v. the ultimate 806 nondisability F.3d 487, 492 See determination.” (9th Cir. 2015) 22 23 The court will 24 benefits “only if 25 evidence in 26 error.” Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). 27 Even where the ALJ reaches a nondisability finding for invalid 28 reasons, the court will not reverse the ALJ’s decision if the the set the aside denial a is administrative 20 denial of unsupported record or is social by security substantial based on legal 1 error was harmless. 2 533 3 credibility finding for harmless error, citing Batson v. Comm’r, 4 359 F.3d 1190, 1195-97 (9th Cir. 2004)). 5 in 6 different decision absent any error[;] . . . it is whether the 7 ALJ’s decision remains legally valid, despite such error.” 8 see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) 9 (court “must uphold the ALJ’s findings if they are supported by F.3d this 1155, context See Carmickle v. Comm’r Soc. Sec. Admin., 1162 is not (9th Cir. whether 2008) the (reviewing adverse “[T]he relevant inquiry ALJ would have made a Id.; 10 inferences reasonably drawn from the record”). 11 though courts apply the harmless error doctrine cautiously in 12 social security cases, no “rigid rule” applies to the degree of 13 certainty required to conclude that an ALJ’s error was harmless. 14 Marsh, 792 F.3d at 1173. 15 “the circumstances of the case show a substantial likelihood of 16 prejudice” from the error, remand is not appropriate where the 17 error’s harmlessness is clear. 18 888 (9th Cir. 2011). Moreover, even Although remand is appropriate where McLeod v. Astrue, 640 F.3d 881, 19 20 Here, even if the ALJ had found Plaintiff’s condition to be 21 severe at step two, the ultimate result would not have been 22 different. 23 hypothetical person with Plaintiff’s age, education and prior 24 work experience who was restricted to a medium range of work and 25 some postural restrictions could still perform Plaintiff’s past 26 work as an electronic assembler. (AR 53-55). 27 testified person 28 restrictions could perform other work existing in significant At that the a ALJ hearing, hypothetical 21 the VE testified with that a The VE further even greater 1 numbers in the regional and national economy. 2 other jobs existing in the national economy); 3 Comm’r of Soc. Sec. Admin., 740 F.3d 519, 527-29 (9th Cir. 2014) 4 (25,000 5 above, 6 functional limitations at all was Dr. Bernabe, who determined 7 that Plaintiff could lift and carry with no restrictions, could 8 stand and walk up to 6 hours of an 8 hour day, and had no 9 restriction on sitting. 10 jobs the nationally only doctor is a who significant found that (AR 55-56) (30,000 See Gutierrez v. number). As Plaintiff noted had any Dr. Bernabe found no other significant exertional or non-exertional limitations. (AR 226). 11 12 Accordingly, even if the ALJ had found Plaintiff’s 13 hypertension or knee pain to be “severe” impairments, based only 14 upon Plaintiff’s testimony, he still would have found her not 15 disabled based upon a combination of subjective testimony and 16 medical evidence.15 17 to the VE, the ALJ asked the VE if an individual with Plaintiff’s 18 age, education, prior work experience, limited to a medium range 19 of work, no ladders, occasional stairs, occasional stooping or 20 bending, 21 pounds frequently, but limited to standing or walking only four 22 hours out an eight hour day, could perform other work. 23 testified that such an individual could work as a hand packager who could (AR 226). lift or In the second hypothetical posed carry 50 pounds occasionally, 25 The VE 24 25 26 27 28 15 The regulations define medium work as lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday.” Social Security Ruling (SSR) 83-10, 1983 SSR LEXIS 30. 22 1 (20,000 2 nationally). jobs nationally) or a machine feeder (10,000 jobs (AR 53-56). 3 4 Had the ALJ reached steps five of the disability analysis, 5 the VE’s testimony would have constituted substantial evidence 6 supporting a non-disability finding. 7 1163 (VE testimony constitutes substantial evidence to support 8 ALJ’s vocational findings). 9 legally valid,” regardless of any alleged step two error, the 10 See Osenbrock, 240 F.3d at Because the ALJ’s decision “remains ALJ’s decision must be affirmed. Carmickle, 533 F.3d at 1162. 11 12 C. The ALJ Provided Clear And Convincing Reasons For Rejecting Plaintiff’s Subjective Testimony 13 14 When assessing a claimant’s credibility, the ALJ must engage 15 16 in a two-step analysis. 17 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). 18 must 19 impairment that could reasonably produce the symptoms alleged. 20 (Id.). 21 testimony, 22 (Id.). 23 impairment, the ALJ may not discredit a claimant’s testimony on 24 the severity of her pain because the degree of pain alleged is 25 not supported by objective medical evidence. 26 400 F.3d 676, 680 (9th Cir. 2005); Bunnell v. Sullivan, 947 F.2d 27 341, 346-47 (9th Cir. 1991). determine if Molina, 674 F.3d at 1112 (citing Vasquez there is objective medical First, the ALJ evidence of an If there is such evidence, to reject the claimant’s If the ALJ must claimant give produces clear and objective convincing medical reasons. evidence Burch v. Barnhart, An ALJ must provide “specific, 28 23 of 1 cogent reasons for the disbelief.” 2 1229, 1231 (9th Cir. 1990). Rashid v. Sullivan, 903 F.2d 3 In assessing the claimant’s testimony, the ALJ may consider: 4 5 6 (1) Ordinary techniques of credibility evaluation, 7 such as the claimant’s reputation for lying, prior 8 inconsistent statements concerning the symptoms, 9 and other testimony by the claimant that appears 10 less than candid; 11 (2) Unexplained or inadequately explained failure to 12 seek treatment or to follow a prescribed course of 13 treatment; and 14 The claimant’s daily activities. (3) 15 16 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). 17 18 Here, the ALJ found that Plaintiff’s medically determinable 19 impairments could have been reasonably expected to produce the 20 alleged 21 Plaintiff’s statements concerning the severity and persistence of 22 the symptoms are not entirely credible. 23 clear and convincing reasons for rejecting Plaintiff’s testimony: 24 (1) Plaintiff’s inconsistent statements concerning her symptoms 25 or 26 (2) repeated noncompliance in following a prescribed course of 27 treatment. 28 \\ symptoms. statements (AR 25). contradicted However, by (AR 25-27). 24 the the (Id.). medical ALJ found that The ALJ provided evidence; and 1. Conflicting Statements Regarding Plaintiff’s Symptoms 1 2 3 First, the ALJ stated that discrepancies in Plaintiff’s 4 statements regarding her symptoms diminished the persuasiveness 5 of her testimony. 6 Plaintiff reported on a Disability Report and during the ALJ 7 hearing 8 repeatedly denied headaches to her treating physicians. 9 238, 246, 251, 254); see Greger v. Barnhart, 464 F.3d 968, 970, 10 972 (9th Cir. 2006) (ALJ properly rejected plaintiff’s subjective 11 testimony because plaintiff failed to report shortness of breath 12 or chest pain to his doctors). that she (AR 25). For instance, the ALJ observed that suffered from debilitating headaches, but (AR 230, 13 14 Furthermore, Plaintiff alleged that “they want to amputate 15 my right arm,” in her disability application, but there is no 16 mention of an amputation procedure in her medical files, nor is 17 there evidence of a condition that would require amputation of a 18 limb. 19 mention of such a drastic medical procedure. 20 extreme nature of this statement was a reasonable ground for the 21 ALJ to rely upon in rejecting Plaintiff’s credibility. (AR 206). The ALJ noted that the record contained no (AR 25). The 22 23 2. Failure To Follow Prescribed Course of Treatment 24 25 Second, the ALJ noted that Plaintiff’s repeated failure to 26 take prescribed medicines and treatments further undermined the 27 credibility of her subjective complaints. 28 25 (AR 25). For example, 1 Plaintiff failed to comply with her prescribed medications and 2 failed to adhere to her suggested diet. (AR 239, 240, 242, 247). 3 To 4 treat Plaintiff’s pain, she was told to perform 5 strengthening exercises and to obtain better shoes. 6 She was prescribed narcotic pain medication. 7 However, 8 because she did not like how it made her feel. 9 Plaintiff opted to take non-steroidal anti-inflammatory drugs. she had not taken the (AR 243). (AR 26, 50-51). medication for several (Id.). years Instead, 10 (AR 50). 11 different kind of narcotic pain medication, thereby indicating a 12 possible unwillingness to do what was necessary to improve her 13 condition. (AR 26). 14 1039 Cir. 2008) 15 claimant’s] pain was 16 [because] he did not seek an aggressive treatment program and did 17 not seek an alternative or more-tailored treatment program after 18 he 19 effects.”); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) 20 (“[I]f a claimant complains about disabling pain but fails to 21 seek treatment, or fails to follow prescribed treatment, for the 22 pain, an ALJ may use such failure as a basis for finding the 23 complaint unjustified or exaggerated.”). 24 provided 25 subjective pain testimony. 26 \\ 27 \\ 28 \\ There is no indication that Plaintiff requested a (9th stopped taking clear and See Tommasetti v. Astrue, 533 F.3d 1035, an (ALJ not properly as all-disabling effective convincing “inferred medication reasons 26 as due that he to [the reported mild side Accordingly, the ALJ to reject Plaintiff’s 1 VIII. 2 CONCLUSION 3 4 5 For the foregoing reasons, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. 6 7 DATED: December 29, 2015 8 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 NOTICE 15 16 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, 17 WESTLAW OR ANY OTHER LEGAL DATABASE. 18 19 20 21 22 23 24 25 26 27 28 27
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
