Nancy Flores v. Nancy A. Berryhill, No. 5:2017cv00251 - Document 23 (C.D. Cal. 2017)

Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See Order for complete details) (afe)

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Nancy Flores v. Nancy A. Berryhill Doc. 23 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 ) No. EDCV 17-0251-AS ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) ) NANCY FLORES, 11 Plaintiff, 12 13 14 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 PROCEEDINGS 19 20 On February 10, 2017, Plaintiff filed a Complaint seeking review 21 of 22 (Docket Entry No. 1). 23 the undersigned United States Magistrate Judge. 24 11-12). 25 Administrative 26 December the denial of her applications for Social Security benefits. The parties have consented to proceed before (Docket Entry Nos. On July 17, 2017, Defendant filed an Answer along with the 6, Record 2017, the (“AR”). parties (Docket Entry Nos. filed Joint Stipulation a 15-16). On (“Joint 27 28 1 Dockets.Justia.com 1 Stip.”), setting forth 2 Plaintiff’s claims. their respective positions regarding (Docket Entry No. 22). 3 The Court has taken this matter under submission without oral 4 5 argument. See C.D. Cal. L.R. 7-15. 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 On 9 November and 16, 2012, warehouse Plaintiff, caregiver 11 Disability 12 alleging an inability to work since October 1, 2012.1 Benefits (AR and 247), filed employed 10 Insurance worker formerly Supplemental as applications Security a for Income, (AR 210, 214). 13 On 14 November 19, 2014, Administrative Law Judge (“ALJ”) Troy 15 Silva examined the record and heard testimony from vocational expert 16 (“VE”) Troy Scott and Plaintiff, who was represented by counsel. 17 (See AR 44-76). 18 onset date to January 1, 2014. 19 ALJ issued a decision denying Plaintiff’s applications. 20 39). At the hearing, Plaintiff amended her disability (AR 54). On January 27, 2015, the (See AR 26- 21 22 The ALJ applied the five-step sequential process in evaluating 23 Plaintiff’s case. At step one, the ALJ determined that Plaintiff had 24 not engaged in substantial gainful activity after the alleged amended 25 onset date of January 1, 2014. (AR 29). At step two, the ALJ found 26 1 27 28 Plaintiff previously applied for Social Security benefits in 2005, and her application was denied in a decision issued on August 1, 2007. (AR 81-89). 2 1 that Plaintiff 2 asthma, cervical myofascial pain disorder, low back pain syndrome, 3 and left shoulder pain. (AR 29). 4 Plaintiff’s impairments did not met or equal a listing found in 20 5 C.F.R. Part 404, Subpart P, Appendix 1. 6 to 7 Functional 8 following limitations: step four, has the the Capacity ALJ following found (“RFC”)2 severe impairments: headaches, At step three, the ALJ found that that to (AR 30). Plaintiff perform Before proceeding had medium the work Residual with the 9 10 [Plaintiff] can lift and carry 50 pounds occasionally and 11 25 pounds frequently. She can stand and walk for six hours 12 out of an eight-hour workday, and she can sit for six hours 13 out of an eight-hour workday. She cannot work in a cold 14 environment or an environment with pulmonary irritants. 15 16 (Id.). At step four, the ALJ adopted the VE’s testimony in finding 17 that Plaintiff was capable of performing her past relevant work as a 18 home health aide (Dictionary of Occupational Titles (“DOT”) 354.377- 19 014), both as she performed it and as the job is generally performed. 20 (AR 21 Plaintiff is not disabled within the meaning of the Social Security 22 Act. 38). As a result of these findings, the ALJ concluded that (AR 39). 23 24 25 26 2 A Residual Functional Capacity is what a claimant can still do despite existing exertional and non-exertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 27 28 3 1 Plaintiff requested that the Appeals Council review the ALJ’s 2 Decision. (See AR 19). The request was denied on December 14, 2016 3 (AR 1-5). The ALJ’s decision then became the final decision of the 4 Commissioner, allowing this Court to review it. 5 405(g), 1383(c). See 42 U.S.C. §§ 6 STANDARD OF REVIEW 7 8 9 This Court reviews the Administration’s decision to determine if 10 it is free of legal error and supported by substantial evidence. 11 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). 12 evidence” 13 preponderance. 14 2014). 15 “a court must consider the record as a whole, weighing both evidence 16 that supports and evidence that detracts from the [Commissioner’s] 17 conclusion.” 18 2001) (internal quotation omitted). 19 can support either affirming or reversing the ALJ’s conclusion, [a 20 court] 21 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). is more than a mere scintilla, but See “Substantial less than a Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. To determine whether substantial evidence supports a finding, may Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. not substitute [its] As a result, “[i]f the evidence judgment for that of the ALJ.” 22 PLAINTIFF’S CONTENTIONS 23 24 25 Plaintiff alleges that the ALJ failed to (1) properly rely on 26 the VE’s testimony and (2) make an RFC finding that is supported by 27 substantial evidence. (See Joint Stip. at 4-26). 28 4 DISCUSSION 1 2 After consideration of the record as a whole, the Court finds 3 4 that the Commissioner’s findings are supported 5 by substantial evidence and are free from material legal error.3 6 7 A. The ALJ Properly Relied on the VE’s Testimony To Find That Plaintiff Could Perform Her Past Relevant Work 8 9 10 Plaintiff contends that the ALJ improperly relied on the VE’s 11 testimony because the ALJ failed to reconcile a conflict between 12 Plaintiff’s RFC and the DOT description of the home health aide 13 occupation. (Joint Stip. at 4-6, 8-10). 14 The 15 ALJ relies on occupations the VE 18 “When there is an apparent conflict between the [VE’s] testimony and 19 the DOT — for example, expert testimony that a claimant can perform 20 an occupation involving DOT requirements that appear to be more than 21 the 22 inconsistency.” 23 486 F.3d 1149, 1153–54 (9th Cir. 2007)); see also SSR 00–4p (stating 24 that the ALJ is perform. considering 416.966(e); Zavalin v. Colvin, 778 F.3d 842, 845-46 (9th Cir. 2015). — can in 17 handle claimant testimony potential can a and 16 claimant that DOT required to 20 C.F.R. reconcile § the Zavalin, 778 F.3d at 846 (citing Massachi v. Astrue, adjudicators must “[i]dentify and obtain a reasonable 25 3 26 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). 5 1 explanation for any conflicts between occupational evidence provided 2 by VEs ... and information in the [DOT], including its companion 3 publication, the Selected Characteristics of Occupations Defined in 4 the Revised Dictionary of Occupational Titles (SCO)”). 5 failure to inquire into an apparent conflict is harmless where there 6 is no actual conflict between the RFC and the DOT. 7 Colvin, 622 F. App'x 687, 689 (9th Cir. 2015) (citing Massachi, 486 8 F.3d at 1154 n. 19). An ALJ's Ranstrom v. 9 10 Here, Plaintiff claims that the ALJ’s RFC determination that 11 Plaintiff cannot work in a cold environment or an environment with 12 pulmonary irritants conflicts with the DOT’s statement that the home 13 health aide occupation involves occasional “exposure to weather” and 14 occasional “wet[ness] and/or humid[ity].” DOT 354.377-014. 15 points out that the SCO defines “exposure to weather” as “[e]xposure 16 to 17 Occupations Defined in the Revised Dictionary of Occupational Titles, 18 Appendix D (U.S. Dept. of Labor 1993). “Atmospheric conditions” is 19 separately such 20 noxious odors, dusts, mists, gases, and poor ventilation, that affect 21 the 22 Plaintiff contends that the FOT’s reference to “exposure to weather” 23 implies 24 asthma 25 irritants. outside atmospheric defined respiratory exposure and the as conditions.” “[e]xposure system, to eyes, pulmonary RFC or Selected to the limitation that (Joint Stip. at 4-6, 8-10). Characteristics conditions skin.” irritants which she Plaintiff Id. conflict must avoid as of fumes, Therefore, with her pulmonary The Court disagrees. 26 Contrary to Plaintiff’s contentions, the ALJ’s RFC finding did 27 28 not limit Plaintiff’s exposure to 6 weather or to wetness and/or 1 humidity; it found that Plaintiff must avoid “a cold environment or 2 an environment with pulmonary irritants.” 3 person 4 concentrated exposure to pulmonary or respiratory irritants,” and who 5 “would need to avoid concentrated exposure to extreme cold or heat.” 6 (AR 72). 7 testified that Plaintiff would be able to perform the job of home 8 health aide as it is generally performed and as Plaintiff actually 9 performed 10 the ALJ described to the VE (AR 30). was one The hypothetical who “should avoid Based on these limitations, along with others, the VE it. (Id.). When asked if the VE’s consistent with the DOT, the VE replied that it was. testimony was (AR 73). 11 There is nothing in the DOT description of the occupation of 12 13 home health 14 suggest that the job, as generally performed, involves exposure to 15 cold or to pulmonary irritants. 16 aide is one who “[c]ares for elderly, convalescent, or handicapped 17 persons in patient’s home,” performing such tasks as changing bed 18 linens, washing laundry, preparing food, and helping to dress and 19 bathe 20 “[a]ccompan[ying] ambulatory patients outside home, serving as guide, 21 companion, and aide,” as well as “miscellaneous duties as requested, 22 such as obtaining household supplies and running errands.” the aide occupation patient. DOT (also called a “home attendant”) to According to the DOT, a home health 354.377-014. The job also involves Id. 23 24 Although the DOT states that the job of home health aide 25 involves occasional “exposure to weather,” (id.), that does not mean 26 the job involves exposure to pulmonary irritants, such as dust or 27 fumes, that would not normally be implied by the term “weather.” 28 DOT uses a different categorical term, “atmospheric conditions,” to 7 The 1 refer to exposure to dust, fumes and other breathable irritants,4 2 (see 3 conditions” are “not present” in the job of a home health aide. 4 354.377-014. 5 suggests that the “exposure to weather” merely occurs in the normal 6 course of being outdoors when “[a]ccompan[ying] ambulatory patients 7 outside [the] home” or when running errands, as needed. SCO, Appendix D), and specifically states that “atmospheric DOT Moreover, a common sense reading of the DOT description 8 9 Plaintiff also contends that the home health aide job conflicts 10 with her asthma because it involves “wetness and/or humidity,” (Joint 11 Stip. 12 pulmonary irritant because it “could affect [Plaintiff] due to her 13 asthma,” 14 “bad weather, such as thunderstorms or high humidity.” 15 n.2 (quoting https://www.cdc.gov/asthma/ triggers.html)). 16 there is nothing in the DOT’s description of the home health aide 17 occupation to suggest that a home health aide’s exposure to wetness 18 and/or humidity would rise to the level of pulmonary irritation.5 19 Accordingly, at 9-10), claiming that “wetness and/or humidity” is a (id. at 10), and noting that asthma’s “triggers” include the VE accurately testified that his (Id. at 10 However, testimony was 20 21 22 23 24 25 26 27 28 4 The SCO defines the categorical term “atmospheric conditions” as “[e]xposure to such conditions as fumes, noxious odors, dusts, mists, gases, and poor ventilation, that affect the respiratory system, eyes, or the skin.” SCO, Appendix D. Contrary to Plaintiff’s argument, it is clear from the DOT and SCO that “atmospheric conditions” and “exposure to weather” are meant as distinct categories, despite the fact that the latter term is defined as “exposure to outside atmospheric conditions.” Id. 5 As used in the DOT, the term “wet and/or humid” is defined as “[c]ontact with water or other liquids or exposure to nonweatherrelated humid conditions.” SCO, Appendix D. This category, therefore, does not include “bad weather, such as thunderstorms.” 8 1 consistent with the DOT, 2 and the ALJ did not materially err in relying on that testimony. 3 4 Finally, there is no indication in the record that Plaintiff’s 5 own past employment as a home health aide exposed her to pulmonary 6 irritants 7 testified that her job involved changing diapers, washing and feeding 8 people who were unable to care for themselves due to strokes or other 9 conditions. or otherwise (AR 50). troubled her asthma condition. Plaintiff The only difficulty that Plaintiff noted about 10 her job was the lifting it required. (AR 51). Because the ALJ found 11 Plaintiff capable of working as a home health aide both as generally 12 and actually performed, the apparent lack of pulmonary irritants in 13 Plaintiff’s past relevant work supports the ALJ’s finding. 14 15 B. The ALJ’s RFC Finding Is Supported by Substantial Evidence 16 17 Plaintiff asserts that the ALJ’s RFC finding is not supported by 18 substantial evidence because Plaintiff “cannot 19 weighing 25 to 50 pounds while using a cane and with limited upper 20 left extremity mobility.” 21 contends that the ALJ erred in rejecting the opinion of Dr. Azizollah 22 Karamlou, the consultative examiner, who determined that, “[a]t most, 23 [she] can perform light work.” 24 that if she were found capable of only light work, she would “grid[] 25 out under grid rule 202.09” due to her illiteracy.6 26 C.F.R., Part 404, Subpart P, Appendix 2, 202.09). (Joint Stip. at 11). (Id. at 11-13). lift/carry items Plaintiff also Plaintiff claims (Id.) (citing 20 27 6 28 The ALJ illiteracy. See AR did 37. not believe Plaintiff’s assertions of Given the Court’s finding that the ALJ 9 1 An RFC assessment is not a medical opinion. Rather, it is an 2 “administrative finding” the ALJ reaches after considering all the 3 relevant evidence, including diagnoses, treatment, observations by 4 treating 5 subjective symptoms. 6 404.1527 (e)(2) (a residual functional capacity finding is not a 7 medical opinion but an administrative finding that is reserved to the 8 Commissioner). physicians, medical records, and the claimant’s own See Social Security Ruling 96-5p; 20 C.F.R. § 9 10 When assessing doctors’ medical opinions, an examining 11 physician’s opinion is “entitled to greater weight than the opinion 12 of a nonexamining physician.” 13 (9th Cir. 1995). 14 contradicted by another doctor's opinion, an ALJ may only reject it 15 by providing specific and legitimate reasons that are supported by 16 substantial evidence.” 17 Cir. 2017) (quoting Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 18 (9th Cir. 2008)). 19 or assigns it little weight while doing nothing more than ignoring 20 it, asserting without explanation that another medical opinion is 21 more persuasive, or criticizing it with boilerplate language that 22 fails to offer a substantive basis for his conclusion.” Lester v. Chater, 81 F.3d 821, 830 “If a treating or examining doctor's opinion is Trevizo v. Berryhill, 871 F.3d 664, 675 (9th “[A]n ALJ errs when he rejects a medical opinion Garrison v. 23 24 25 26 properly rejected Dr. Karamlou’s opinion regarding Plaintiff’s limitation to light work, the Court does not address Plaintiff’s claims regarding her illiteracy. 27 28 10 1 Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (citing Nguyen v. 2 Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). 3 As set forth above, the ALJ found that Plaintiff had the RFC to 4 5 perform medium work with certain limitations. (AR 30). 6 at this RFC finding, the ALJ reviewed and considered the physical, 7 musculoskeletal 8 Karamlou on April 23, 2013, (AR 32; 377-81), incorporating some of 9 Dr. Karamolou’s findings and rejecting others that lacked support in 10 and neurological examinations In arriving conducted by Dr. the record. 11 12 Dr. Karamlou found that Plaintiff has “the following problems”: 13 History of trauma to the chest along with the motor vehicle accident. 14 She was hit by machinery and she has had continuous headache. 15 also has breathing problem as a result of the injury to the left 16 lung. 17 left leg. 18 380). 19 pounds occasionally and ten pounds frequently, walk, stand and sit 20 for six hours in an eight-hour day; push and pull occasionally; and 21 can climb, balance, kneel and crawl frequently. 22 observed that Plaintiff “walks with a cane just for long distance 23 support,” but found that she does not need a cane or other assistive 24 device to walk, and she can “walk on uneven terrain, climb ladders, 25 and work at heights.” 26 Plaintiff “should avoid extremes in temperature, dust and chemicals 27 due to injury to the lung.” She She currently has low back pain syndrome with sciatica of the [She] walks with a cane for long distance support. (AR Dr. Karamlou opined that Plaintiff can lift and carry twenty (AR 379, 381). (AR 381). 28 11 (Id.). Dr. Karamlou Dr. Karamlou opined that 1 The ALJ rejected Dr. Karamlou’s opinion regarding Plaintiff’s 2 ability to lift and carry twenty pounds occasionally and ten pounds 3 frequently, 4 opinion. “The medical evidence of record does not show a worsening of 5 the claimant’s impairments since the prior decision other than the 6 internal medicine consultative examiner indicating a light residual 7 functional capacity, but this assessment does not seem supported by 8 the 9 residual functional capacity given in the last decision due to the 10 lack of objective findings showing a worsening of the claimant's 11 condition.” finding objective no evidence.” support (AR in 32, the medical 37).7 “I am record using for a this medium (AR 37). 12 13 The record supports the ALJ’s finding. Medical records dated 14 February 12 and 17, 2014, reveal that although Plaintiff complained 15 of left shoulder pain, examination revealed a normal range of motion 16 and normal strength. (AR 33, 412, 430). 17 March 6 and 18, 2014, also showed normal range of motion and normal 18 motor strength despite Plaintiff’s complaints of ongoing shoulder 19 pain. (AR 33, 473, 515). 20 abdominal pain, for which Plaintiff was treated and released, also 21 confirmed normal range of motion in the neck. (AR 33, 529). 22 October 11, 2014, Plaintiff was treated for pneumonia but a physical 23 examination was completely normal. 24 emergency room visit on October 28, 2014 indicate that Plaintiff Records of examinations on A June 11, 2014, emergency room visit for (AR 33, 1392). On Records from an 25 7 26 27 As noted, Plaintiff had previously filed an application for Social Security Income in 2005, which was denied on August 1, 2007. (AR 81-89). 28 12 1 complained of low back pain, appeared to be in mild to moderate pain, 2 and was advised to apply ice and cold packs for three days. The 3 attending physician did not believe that lumber spine x-rays were 4 necessary. 5 medical records submitted after the hearing date did not support 6 Plaintiff’s complaints of back, neck and shoulder pain to the extent 7 alleged at the hearing. (AR 37). An examination on November 22, 2014 8 revealed 5/5 strength in upper and lower extremities. (AR 1459). (AR 34, 1437). The ALJ also noted that a review of the 9 10 The ALJ also declined to adopt Dr. Karamlou’s opinion that 11 Plaintiff can push and pull occasionally and can climb, balance, 12 kneel and crawl frequently, (AR 380), finding that Dr. Karamlou’s own 13 assessment 14 pushing and pulling. 15 Karamlou found that Plaintiff’s muscle strength was “in the range of 16 5/5 and 5/5,” and her range of motion in the shoulders, elbows, and 17 wrists was “grossly within normal limits bilaterally.” 18 Dr. Karamlou also found that Plaintiff could grip forty-five pounds 19 with her right hand and forty pounds with her left, that her grip 20 strength was “5/5 bilaterally,” and that joint flexion in Plaintiff’s 21 hands was grossly within normal limits (AR 380). did not support the greater limitations in lifting, For example, upon examining Plaintiff, Dr. (AR 379-80). 22 23 The ALJ’s RFC finding incorporated Dr. Karamlou’s opinion that 24 Plaintiff can walk, stand and sit for six hours in an eight-hour day, 25 and that she does not need an assistive device for walking. 26 380-81). 27 environment or an environment with pulmonary irritants,” (AR 30), the 28 ALJ also incorporated Dr. Karamlou’s opinion that Plaintiff “should 13 (AR 30, Moreover, by finding that Plaintiff “cannot work in a cold 1 avoid extremes in temperature, dust and chemicals due to injury to 2 the lung.” (AR 381). 3 4 The ALJ noted that when questioned about the use of an assistive 5 device, plaintiff stated that she used [it] primarily because she is 6 under 5' in height[], and she uses it to prop her feet when using the 7 toilet or to retrieve items that are too high for her to reach. (AR 8 32, 66, 296). 9 Plaintiff did not need the cane or other assistive device to walk and 10 supported by medical examinations which generally show a normal gait 11 without assistance. 12 to any medical opinion or other evidence in the record to show that 13 she needs a cane to walk. This was consistent with Dr. Karamlou’s opinion that (E.g., AR 491, 529). Plaintiff does not point 14 15 The ALJ’s RFC finding was consistent with the opinions of the 16 state agency non-examining physicians, (see AR 117, 138), who found 17 that Plaintiff was limited “to medium exertion with preclusions from 18 concentrated exposure 19 ventilation.” (AR 20 opinions finding them to be “consistent with the overall evidence.” 21 (AR 38). to 38). fumes, The ALJ odors, gave dust, “great gases and poor weight” to these 22 23 The ALJ’s decision to reject Dr. Karamlou’s opinion regarding 24 Plaintiff’s ability to lift and carry twenty pounds occasionally and 25 ten pounds frequently and limitations of Plaintiff’s ability to push 26 and pull, climb, balance, kneel and crawl in determining Plaintiff’s 27 RFC is supported by substantial evidence in the record. 28 14 ORDER 1 2 3 4 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 DATED: December 28, 2017 9 10 11 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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