Leanna May Burgum v. Carolyn W. Colvin, No. 5:2016cv01510 - Document 18 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. Plaintiff Leanna May Burgum ("Plaintiff") challenges the Commissioner's denial of her application for a period of disability and disability insurance benefits. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 3 (gr)
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Leanna May Burgum v. Carolyn W. Colvin Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LEANNA MAY BURGUM, 12 Plaintiff, 13 14 15 Case No. CV 16-01510-RAO v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, MEMORANDUM OPINION AND ORDER Defendant. 16 17 18 I. 19 20 21 22 23 24 25 26 27 INTRODUCTION Plaintiff Leanna May Burgum (“Plaintiff”) challenges the Commissioner’s denial of her application for a period of disability and disability insurance benefits. For the reasons stated below, the decision of the Commissioner is AFFIRMED. II. PROCEEDINGS BELOW On December 14, 2013, Plaintiff applied for disability insurance benefits (DIB), alleging onset of disability on December 1, 2013. (Administrative Record (“AR”) 159). Her application was denied on initial review, and upon reconsideration, after which Plaintiff requested a hearing before an administrative law judge (“ALJ”). (Id. at 77, 86, 90.) On August 26, 2015, the ALJ held a hearing 28 Dockets.Justia.com 1 at which Plaintiff, represented by counsel, testified. (Id. at 29-54.) An impartial 2 vocational expert also testified. (Id. at 36-38, 49-53.) On October 8, 2015, the ALJ 3 found that Plaintiff had not been under a disability, pursuant to the Social Security 4 Act,1 from the alleged onset date through the decision date. (Id. at 23.) The ALJ’s 5 decision became the Commissioner’s final decision when the Appeals Council 6 denied Plaintiff’s request for review. (Id. at 1.) Plaintiff filed this action on July 7 11, 2016. (Dkt. No. 1.) 8 The ALJ followed a five-step sequential evaluation process to assess whether 9 Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821, 10 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged 11 in substantial gainful activity since December 1, 2013, the alleged onset date 12 (“AOD”). (AR 15.) At step two, the ALJ found that Plaintiff has the severe 13 impairments of arthritis in bilateral hands, degenerative joint disease in bilateral 14 knees status post joint replacement, chronic obstructive pulmonary disease, and 15 obesity. (Id.) At step three, the ALJ found that Plaintiff “does not have an 16 impairment or combination of impairments that meets or medically equals the 17 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 18 1.” (Id. at 17.) Before proceeding to step four, the ALJ found that Plaintiff has the residual 19 20 functional capacity (“RFC”) to: 21 Perform a range of light work as defined in 20 CFR 404.1567(b). Specifically, she can lift and/or carry 20 pounds occasionally and 10 pounds frequently; she can stand and/or walk for four hours of an eight hour workday for 30 minutes at a time, then would need to rest at a workstation before standing and walking again; she has no limitations with sitting; pushing and/or pulling is unlimited other than 22 23 24 25 26 27 28 1 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A). 2 for lifting and carrying; she can do frequent handling and fingering with her bilateral upper extremities; she should avoid concentrated exposure to respiratory irritants; she can frequently bend and/or stoop; she can occasionally climb ramps and/or stairs; she cannot climb ladders, ropes, or scaffolds; and, she can occasionally crouch and/or crawl. 1 2 3 4 5 (AR 17.) 6 At step four, based on Plaintiff’s RFC and the VE’s opinion, the ALJ found 7 that Plaintiff is capable of performing past relevant work as an office manager, 8 administrative assistant, and contract clerk. (AR 22-23.) 9 III. STANDARD OF REVIEW 10 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 11 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 12 supported by substantial evidence, and if the proper legal standards were applied. 13 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’ 14 means more than a mere scintilla, but less than a preponderance; it is such relevant 15 evidence as a reasonable person might accept as adequate to support a conclusion.” 16 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. 17 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial 18 evidence requirement “by setting out a detailed and thorough summary of the facts 19 and conflicting clinical evidence, stating his interpretation thereof, and making 20 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). 21 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 22 specific quantum of supporting evidence. Rather, a court must consider the record 23 as a whole, weighing both evidence that supports and evidence that detracts from 24 the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 25 2001) (citations and internal quotations omitted). “‘Where evidence is susceptible 26 to more than one rational interpretation,’ the ALJ’s decision should be upheld.” 27 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. 28 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins, 466 F.3d at 882 3 1 (“If the evidence can support either affirming or reversing the ALJ’s conclusion, we 2 may not substitute our judgment for that of the ALJ.”). The Court may review only 3 “the reasons provided by the ALJ in the disability determination and may not affirm 4 the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 5 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 6 IV. DISCUSSION 7 Plaintiff contends that the ALJ: (1) failed to properly consider the relevant 8 medical evidence of record in assessing Plaintiff’s RFC; and (2) failed to properly 9 consider Plaintiff’s subjective complaints and properly assess her credibility. (Joint 10 Stipulation (“Joint Stip.”) at 3.) 11 A. The ALJ’s RFC Assessment is Supported by Substantial Evidence 12 Plaintiff contends that the ALJ’s RFC is not supported by substantial 13 evidence because the ALJ failed to consider all relevant medical evidence of record, 14 including medical evidence which contradicts and is inconsistent with the ALJ’s 15 RFC assessment. Joint Stip. at 4. Specifically, Plaintiff cites to treatment records 16 from Dr. Ahluwalia, designated as Exhibit 15F in the administrative record (AR 17 364-402), which were scanned into the record prior to the administrative hearing, 18 but are not discussed in the ALJ’s decision. Id. 19 As described in the Joint Stipulation, Plaintiff submitted additional medical 20 records to the Appeals Council which were not before the ALJ. The Appeals 21 Council denied review of the ALJ’s decision. The Commissioner does not dispute 22 that the Court must consider Dr. Ahluwalia’s treatment notes in Exhibit 15F in 23 determining whether the ALJ’s decision is supported by substantial evidence. See 24 Joint Stip. at 8; see also Brewes v. Comm’r of Social Sec. Admin., 682 F.3d 1157, 25 1162-63 (9th Cir. 2012) (where Appeals Council considers new evidence in 26 denying review of the ALJ’s decision, the new evidence becomes part of the 27 administrative record for purposes of the district court’s analysis in determining 28 whether the ALJ’s decision is supported by substantial evidence). Accordingly, 4 1 this Court considers the record as a whole, including the treatment records in 2 Exhibit 15F, in determining whether the ALJ’s RFC assessment is supported by 3 substantial evidence. The Court concludes that it is. 1. 4 Applicable Legal Standards 5 In making an RFC determination, the ALJ must consider all the relevant 6 evidence in the record, including medical records, lay evidence, and the effects of 7 symptoms, including pain, reasonably attributable to medically determinable 8 impairments. See Robbins, 466 F.3d at 883 (citing Soc. Sec. Ruling 96-8p (July 2, 9 1996), 1996 WL 374184, at *5). An ALJ’s determination of a claimant’s RFC 10 must be affirmed “if the ALJ applied the proper legal standard and his decision is 11 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.2d 1211, 1217 (9th 12 Cir. 2005). 13 2. Discussion 14 In assessing Plaintiff’s RFC, the ALJ properly took into account limitations 15 for which there was record support, specifically incorporating limitations based on 16 treatment history of Plaintiff’s knees and hands. With respect to Plaintiff’s knees, 17 the ALJ determined that Plaintiff can “stand and/or walk for four hours of an eight- 18 hour workday for 30 minutes at a time, then would need to rest at the workstation 19 before standing and walking again and occasional crouching and crawling.” AR 20 19. These restrictions were based on medical records from a walk-in clinic that 21 treated Plaintiff (Exhibit 4F). 22 trigger finger, the ALJ similarly incorporated limitations based on treatment 23 history, including physical therapy, by assessing that Plaintiff was “limited [to] 24 light exertional work, frequent handling and fingering with her bilateral upper 25 extremities, and precluded from climbing ladders, ropes, or scaffolds.” Id. at 20. 26 These limitations were also based on evidence in the record before the ALJ 27 (Exhibits 1F, 2F, 4F, 5F, 8F, 9F). Taking into account all of the record evidence, 28 the ALJ had substantial evidence to conclude that Plaintiff was capable of With respect to Plaintiff’s hands, including her 5 1 performing light work as set forth in the RFC. See Batson v. Comm’r of Soc. Sec. 2 Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (“[T]he Commissioner’s findings are 3 upheld if supported by inferences reasonably drawn from the record[.]).2 4 Plaintiff contends that the additional evidence contained in Exhibit 15F does 5 not support the ALJ’s RFC assessment of light work and points to Dr. Ahluwalia’s 6 findings of osteoarthritis, Plaintiff’s reports of pain and inflammation in her hands 7 and knees, and x-rays of Plaintiff’s knees which revealed “moderate degenerative 8 medial joint space narrowing.” (AR 371-72, 374-75, 382, 390). However, the 9 Court’s review of Dr. Ahluwalia’s treatment records in Exhibit 15F finds that they 10 are generally consistent with other record evidence and provide no additional 11 information that undermines the legal sufficiency of the ALJ’s RFC assessment. 12 The treatment records in Exhibit 15F that pertain to the ALJ’s RFC assessment 13 reveal findings of mild osteoporosis (AR 367-70) and generalized osteoarthrosis 14 (AR 382). While certain treatment records indicate moderate degenerative findings 15 with respect to Plaintiff’s knees (AR 374-75) and “Heberden’s and Bouchard’s 16 nodes hands” (AR 382), this medical evidence does not significantly undermine or 17 contradict the otherwise consistent findings of mild osteoporosis that are found 18 throughout the medical record.3 19 20 21 22 23 24 25 26 27 28 2 Notably, at the administrative hearing, Plaintiff’s attorney characterized most of the evidence regarding Plaintiff’s arthritis in her hands as “mild” and indicated that the medical records, including x-rays, were consistent in making mild or minimal findings from 2011 through 2014. AR 43-44 (“[m]ost [of the objective evidence] is documented as mild”). This characterization of mild findings is consistent with the Court’s own review of the medical records regarding Plaintiff’s hand impairments, as well as knee impairments. 3 In challenging the ALJ’s RFC assessment, Plaintiff also argues, in a conclusory manner, that the ALJ committed error in finding Plaintiff’s right eye impairment, hepatitis C, neuropathy, GURD, and irritable bowel syndrome to be non-severe impairments. Joint Stip. at 6. The Court does not address these arguments because Plaintiff has failed to argue these issues with any specificity in the Joint Stipulation. See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 6 1 B. The ALJ Did Not Err In Evaluating Plaintiff’s Subjective 2 Complaints 3 1. Applicable Legal Standards 4 “In assessing the credibility of a claimant’s testimony regarding subjective 5 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina 6 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 7 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has 8 presented objective medical evidence of an underlying impairment which could 9 reasonably be expected to produce the pain or other symptoms alleged.” Treichler 10 v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting 11 Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the 12 ALJ does not find evidence of malingering, the ALJ must provide specific, clear 13 and convincing reasons for rejecting a claimant’s testimony regarding the severity 14 of his symptoms. Id. The ALJ must identify what testimony was found not 15 credible and explain what evidence undermines that testimony. Holohan, 246 F.3d 16 at 1208. “General findings are insufficient.” Lester, 81 F.3d at 834. 17 2. Discussion 18 “After careful consideration of the evidence,” the ALJ found that Plaintiff’s 19 “medically determinable impairments could reasonably be expected to cause the 20 alleged symptoms,” but found that Plaintiff’s “statements concerning the intensity, 21 persistence and limiting effects of these symptoms are not entirely credible for the 22 reasons explained in this decision.” (AR 19.) In reaching this determination, the 23 ALJ relied on the following reasons: (1) lack of supporting objective evidence; and 24 (2) Plaintiff’s activities of daily living. (Id. at 18-19.) 25 26 27 28 First, the ALJ determined stated that “the medical record . . . casts doubt on the credibility of [Plaintiff’s] allegations.” (AR 18.) The ALJ observed that 2008) (“We do not address this finding [by the ALJ] because [claimant] failed to argue this issue with any specificity in his briefing.”). 7 1 “[a]lthough [Plaintiff] alleged severe and disabling pain, the medical record is 2 relatively sparse. [Plaintiff] has not sought the type of treatment one would expect 3 of a disabled individual. 4 impairments, one might expect to see a greater level of intervention and/or more 5 aggressive treatment options. 6 available indicate a rather mild and conservative course of treatment in the form of 7 medication, minimal physical therapy, and minimal finger surgery. This suggests 8 that [Plaintiff’s] symptoms may not be as severe as she alleged.” (Id.) Given the allegations of such severe and disabling On the contrary, what few medical records are 9 Next, the ALJ noted that Plaintiff “is able to perform her activities of daily 10 living with minimal difficulty. She reported she cares for her personal needs, cares 11 for her dogs, uses a computer for email and Facebook, prepares daily meals, dusts, 12 vacuums, cleans the bathroom, goes grocery shopping weekly, and attends outdoor 13 concerts in the summer.” (AR 18.) “Some of the physical and mental abilities and 14 social interactions required in order to perform these activities are the same as those 15 necessary for obtaining and maintaining employment. 16 participate in such activities undermines her credibility regarding allegations of 17 disabling functional limitations.” (Id.) [Plaintiff’s] ability to 18 The Court’s review of the evidence of record finds that the ALJ’s 19 observations regarding Plaintiff’s credibility are supported by clear and convincing 20 reasons. First, the ALJ’s determination that Plaintiff’s relatively sparse treatment 21 records suggested that Plaintiff’s symptoms were not as severe as alleged was a 22 sufficient reason for discounting Plaintiff’s credibility. See Orteza v. Shalala, 50 23 F.3d 748, 750 (9th Cir. 1995) (permissible for ALJ to consider “the unexplained 24 absence of treatment” in determining credibility); see also Parra v. Astrue, 481 25 F.3d 742, 750-51 (9th Cir. 2007) (evidence of conservative treatment is sufficient to 26 discount a claimant’s testimony regarding severity of an impairment); see also 27 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting plaintiff’s 28 complaint “that she experienced pain approaching the highest level imaginable” as 8 1 “inconsistent with the ‘minimal, conservative treatment’ that she received”). 2 Second, the ALJ’s characterization of Plaintiff’s daily activities was 3 supported by substantial evidence. See Burch, 400 F.3d at 681. Plaintiff’s own 4 function report, which stated that she could prepare meals with help, do 5 housekeeping (dusting, vacuuming, cleaning bathroom), go grocery shopping, 6 manage funds and pay bills, and use Facebook, conflicted with Plaintiff’s hearing 7 testimony. Compare AR 182-84 to AR 38-39, 46; see Young v. Colvin, 610 F. 8 App’x 615, 615-16 (9th Cir. 2015) (affirming denial of benefits where ALJ’s 9 characterization of claimant’s daily activities of attending to self-care, driving a car, 10 grocery shopping, organizing her household, using a computer, and managing her 11 finances was supported by substantial evidence). 12 reasonable person could conclude that her activities of daily living” are in any way 13 “consistent with or supportive of the ability to perform her past relevant work….” 14 Joint Stip. at 14. Although the evidence of Plaintiff’s daily activities may be 15 interpreted differently, and more favorably to Plaintiff, the ALJ’s interpretation was 16 rational, and must be upheld “where the evidence is susceptible to more than one 17 rational interpretation.” Burch, 400 F.3d at 680-81 (citing Magallanes v. Bowen, 18 881 F.2d 747, 750 (9th Cir. 1989) (upholding ALJ’s determination that claimant’s 19 daily 20 notwithstanding that evidence was susceptible to more than one rational 21 interpretation). activities suggested claimant was “quite Plaintiff contends that “no functional” as rational, Accordingly, the Court concludes that the ALJ’s credibility finding is legally 22 23 valid and supported by substantial evidence. 24 /// 25 /// 26 /// 27 /// 28 /// 9 1 2 3 4 5 V. CONCLUSION IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 6 7 8 DATED: August 31, 2017 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 9 10 11 NOTICE 12 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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