Eustoilia Delatorre v. Nancy A. Berryhill, No. 5:2017cv00786 - Document 22 (C.D. Cal. 2018)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. For the foregoing reasons, the decision of the Commissioner is AFFIRMED. LET JUDGMENT BE ENTERED ACCORDINGLY. (See Order for further details) (vm)
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Eustoilia Delatorre v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 11 12 13 14 15 16 17 18 EUSTOILIA DELATORRE, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. EDCV 17-00786-AS MEMORANDUM OPINION 19 PROCEEDINGS 20 21 On April 24, 2017, Plaintiff filed a Complaint seeking review of 22 the denial of her application for Supplemental Security Income. (Docket 23 Entry No. 1). The parties have consented to proceed before the 24 undersigned United States Magistrate Judge. (Docket Entry Nos. 11-12). 25 On September 19, 2017, Defendant filed an Answer along with the 26 Administrative Record (“AR”). (Docket Entry Nos. 15-16). The parties 27 filed a Joint Stipulation (“Joint Stip.”) on February 8, 2018, setting 28 Dockets.Justia.com 1 forth their respective positions regarding Plaintiff’s claims. (Docket 2 Entry No. 21). 3 4 The Court has taken this matter under submission without oral 5 argument. See C.D. Cal. L.R. 7-15. 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 On April 17, 2013, Plaintiff, formerly employed as a housekeeper 10 (see AR 73-76, 246), filed an application for Supplemental Security 11 Income, alleging an inability to work because of disabling condition 12 since July 20, 2010. (See AR 51, 191-218). 13 Plaintiff’s application initially on The Commissioner denied July 12, 2013 and on 14 reconsideration on January 29, 2014 (see AR 102, 129-34). 15 16 On July 16, 2015, the Administrative Law Judge (“ALJ”), Andrew 17 Verne, heard testimony from Plaintiff, who was represented by counsel 18 and assisted by a Spanish language interpreter, and vocational expert 19 Joseph Henry Torres. (See AR 67-90). On October 21, 2015, the ALJ 20 issued a decision denying Plaintiff’s application. (See AR 51-59). 21 After determining that Plaintiff had severe impairments –- “C4-C5 disc 22 protraction; and status post right knee arthroplasty” (AR 53)1 –- but did 23 not have an impairment or combination of impairments that met or 24 medically equaled the severity of one of the listed impairments (AR 55), 25 the ALJ found that Plaintiff had the residual functional capacity 26 27 28 1 The ALJ found that Plaintiff’s other impairments –- left breast mass, hypertension, diabetes, depression and anxiety –- were nonsevere. (AR 53-54). 2 2 3 1 (“RFC”) to perform medium work with the following limitations: lifting 2 and/or carrying 50 pounds occasionally and 25 pounds frequently; 3 standing and walking for 6 hours in an 8-hour workday with normal 4 breaks; sitting for 6 hours in an 8-hour workday with normal breaks; 5 climbing ramps and/or stairs, ladders, ropes or scaffolds occasionally; 6 and stooping, kneeling, crouching and crawling occasionally. 7 58). (AR 55- The ALJ then determined that Plaintiff was able to perform her 8 past relevant work as a day worker as actually and generally performed 9 (AR 58-59), and was therefore not disabled within the meaning of the 10 Social Security Act. (AR 59). 11 12 The Appeals Council denied Plaintiff’s request for review on 13 February 22, 2016. (See AR 1-4, 40). Plaintiff now seeks judicial 14 review of the ALJ’s decision which stands as the final decision of the 15 Commissioner. See 42 U.S.C. §§ 405(g), 1383(c). 16 17 STANDARD OF REVIEW 18 19 This Court reviews the Administration’s decision to determine if 20 it is free of legal error and supported by substantial evidence. See 21 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial 22 evidence” is more than a mere scintilla, but less than a preponderance. 23 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine 24 25 2 A Residual Functional Capacity is what a claimant can still do See 20 C.F.R. § 416.945(a)(1). 26 despite existing exertional and nonexertional limitations. 27 28 3 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c). 3 1 whether substantial evidence supports a finding, “a court must consider 2 the record as a whole, weighing both evidence that supports and evidence 3 that detracts from the [Commissioner’s] conclusion.” Aukland v. 4 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 5 omitted). As a result, “[i]f the evidence can support either affirming 6 or reversing the ALJ’s conclusion, [a court] may not substitute [its] 7 judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 8 880, 882 (9th Cir. 2006). 9 10 PLAINTIFF’S CONTENTION 11 12 Plaintiff alleges that the ALJ erred in finding that Plaintiff had 13 the RFC to do medium work after February 2014. (See Joint Stip. at 4-9, 14 13-16). 15 16 DISCUSSION 17 18 After consideration of the record as a whole, the Court finds that 19 the Commissioner’s findings are supported by substantial evidence and 20 are free from material legal error. 21 22 A. 23 The ALJ Did Not Err in Determining Plaintiff’s RFC after February 2014. 24 25 Plaintiff asserts that the ALJ improperly found that Plaintiff had 26 the RFC to do medium work after February 2014, based on evidence about 27 Plaintiff’s knee surgeries. Plaintiff claims that “[a]s of 28 approximately February 2014, [Plaintiff’s] condition appeared to limit 4 1 her to sedentary exertion at most.” (See Joint Stip. at 4-9). 2 Defendant asserts that the ALJ’s determination about Plaintiff’s RFC was 3 supported by substantial evidence. 4 5 (See Joint Stip. at 9-13). Plaintiff appears to concede that the ALJ properly found that 6 Plaintiff had the RFC to do medium work, at least through February 2014, 7 based on the evidence in the record. (See Joint Stip. at 5-6, citing 8 AR 397-403 [In a report dated June 13, 2013, the examining physician, 9 Bryan H. To, M.D. (internal medicine), following a physical examination 10 and a neurological examination, diagnosed Plaintiff with hypertension, 11 back pain, multiple joint pain (based, in part, on evidence of 12 “deformity in the knees”), fibromyalgia, and depression, and opined that 13 Plaintiff had the functional abilities to push, pull, lift and carry 50 14 pounds occasionally and 25 pounds frequently, to stand and walk 6 hours 15 in an 8-hour workday, to bend, kneel, stoop, crawl and crouch 16 frequently, to walk on uneven terrain, climb ladders or work with 17 heights frequently, but to not work with moving machinery], AR 96 [On 18 July 1, 2013, State Agency physician, K. Vu, D.O., opined that Plaintiff 19 had the capacity to do medium work based on osteroarthritis with a 20 fairly normal range of motion and a normal gait], and AR 113-15 [On 21 November 15, 2013, State Agency physician, R. Bitonte, M.D., opined 22 inter alia that Plaintiff had the capacities to lift and/or carry 50 23 pounds occasionally and 25 pounds frequently, to stand and/or walk about 24 6 hours in an 8-hour workday, to push and/or pull on an unlimited basis, 25 to climb ramps, stairs, ladders, ropes and scaffolds occasionally, to 26 balance frequently, and to stoop, kneel crouch and crawl occasionally]; 27 see also Joint Stip. at 8). In addition, Plaintiff does not challenge 28 the ALJ’s decision to give “great weight” to the opinions of Drs. To, 5 1 Vu and Bitonte (AR 58), at least through February 2014. (See Joint Stip. 2 at 6). 3 4 However, Plaintiff contends that the following evidence in the 5 record from the Riverside County Regional Medical Center does not 6 support the ALJ’s RFC determination as of February 2014: (1) a Clinic 7 Note dated February 26, 2014, stating that Plaintiff reported she is 8 having difficulty walking due to pain (see AR 588); (2) a Clinic Note 9 dated May 21, 2014, stating that Plaintiff reported having bilateral 10 knee pain which affected her activities of daily living and made her 11 unable to walk one block unassisted, Plaintiff’s knees had crepitus and 12 tenderness to palpation, and Plaintiff had received refractory to 13 conservative treatment for her bilateral knee pain (see AR 574); (3) a 14 Clinic Note dated June 27, 2014, stating that Plaintiff’s right knee had 15 crepitus, swelling, tenderness to palpation and decreased range of 16 motion (see AR 569); (4) a Record of Operation, stating that Plaintiff 17 had a total right knee arthoplasty on June 30, 2014, and finding that 18 Plaintiff had “[g]enu varum deformity with significant wear noted about 19 the medial compartment” (see AR 565); (5) a Clinic Note dated August 13, 20 2014, stating that Plaintiff reported her right knee pain was improving 21 and that the pain was controlled with percocet (see AR 561); (6) a 22 Clinic Note dated September 24, 2014, stating that Plaintiff reported 23 her right knee was doing “excellent,” and that Plaintiff’s left knee had 24 degenerative joint disease (see AR 555); (7) a Treatment Authorization 25 Request dated September 24, 2014, stating that conservative therapy 26 including injections and physical therapy on Plaintiff’s left knee had 27 failed, and that Plaintiff’s pain continued to affect her activities of 28 daily living (see AR 556); (8) a Clinic Note dated December 5, 2014, 6 1 stating that Plaintiff reported her right knee surgery had “good 2 results,” and that Plaintiff’s left knee had degenerative joint disease, 3 sclerosis and osteophytes (see AR 554); (9) a Discharge Summary stating 4 that Plaintiff had a total left knee arthroplasty on December 8, 2014, 5 and was discharged on December 11, 2014 (see AR 739-41); (10) an 6 Emergency Department note dated January 10, 2015, stating that Plaintiff 7 was complaining of sharp pain in her left knee (which became worse with 8 ambulation) (see AR 531); (11) a Clinic Note dated January 21, 2015, 9 stating that Plaintiff reported that she had persistent pain in the 10 anterior portion of her left knee and that she ambulated with a walker 11 (see AR 551); (12) a Clinic Note dated March 4, 2015, stating that 12 Plaintiff reported that her left knee continued to be painful, and that 13 the source of pain was likely due to the lack of range of motion (see 14 AR 529); and (13) a Clinic Note dated June 24, 2015, stating that 15 Plaintiff reported her left knee was “doing well” and that “pain 16 persists yet is improving,” and that the range of movement in 17 Plaintiff’s left knee was 0 to 100 degrees (see AR 511). 18 Stip. at 6-8). (See Joint According to Plaintiff, “As of approximately February 19 2014, a reasonable person would not accept the opinions as to Drs. To, 20 Vu and Bitonte in light of the significant deterioration in 21 [Plaintiff’s] condition since their involvement. . . . [¶] As of 22 approximately February 2014, [Plaintiff’s] condition appeared to limit 23 her to sedentary exertion at most.” (Joint Stip. at 8-9). 24 25 Prior to addressing the weight given to the opinions of the 26 examining physician and the State Agency physicians, the ALJ discussed 27 the 2014 evidence concerning Plaintiff’s knees as follows: 28 7 1 In June 2014, the claimant underwent right knee total 2 arthroplasty 3 583).[4] 4 the claimant’s prognosis after surgery was good (id. at p. 5 577).[5] 6 (id. at p. 465).[6] In December 2014, the claimant underwent 7 left arthoplasty, 8 complication (id. at p. 338).[7] 9 claimant was placed on temporary disability for 12-weeks, 10 which does not meet the Social Security Administration[’]s 11 duration requirement (id. at p. 259).[8] under general anesthesia (Exhibit 14F, p. The surgery was completed without complication and X-ray images post surgery showed anatomic alignment knee total also performed without After both operations, the 12 13 After surgery, the claimant started physical therapy 14 (Exhibit 14F, p. 123).[9] 15 improvement with recovery and physical exercises designed to The therapy records note gradual 16 17 18 19 4 [AR 1093 (Riverside Medical Center Anesthesia Post-Operative Note dated June 1, 2014)]. 5 [AR 1087 (Riverside Medical Center Pre/Post Operative Note 20 dated June 30, 2014)]. 6 21 [AR 975 (Riverside Medical Center Diagnostic Imaging Report dated June 30, 2014)]. 22 7 23 2014)]. 24 8 25 26 27 [AR 848 (Riverside Medical Center Report dated December 8, [AR 769 (Riverside County Patient Discharge Form dated December 11, 2014, stating that Plaintiff was Temporarily Disabled for 12 weeks following her left knee surgery); see also AR 739. However, the Court is unable to locate anything in the record indicating that Plaintiff was found to be temporarily disabled for 12 weeks following her right knee surgery.] 9 28 Evaluation[AR 633 (Riverside Medical Center Physical Therapy Knee dated July 11, 2014)]. 8 1 improve strength and range of motion (id. at pp. 88-123).[10] 2 Follow-up treatment records indicate the claimant’s hardware 3 was intact and treatment was limited to continued physical 4 therapy and pain medication as needed (id. at p. 30).[11] 5 most recent record notes improvement and reports that the 6 claimant was doing well (id. at p. 1).[12] The 7 8 (AR 58; bracketed footnote added). 9 10 The ALJ then proceeded to address the opinions of the examining 11 physician and the State Agency physicians as follows: 12 13 The undersigned has given great weight to the opinion of 14 the 15 functional limitations that are essentially the same as those 16 included 17 herein; however, the undersigned further reduced the claimant 18 to only occasional postural activities in deference to her 19 history of knee surgery. 20 examined the claimant and his findings were consistent with 21 the generally mild exam findings in the record. consultative examiner, Dr. To (Exhibit 3F). in the residual functional capacity He assessed assessment Dr. To personally observed and 22 23 24 10 [AR 598-633 (Riverside Medical Center Physical Therapy records 25 dated July 11, 2014 to January 30, 2015)]. 26 Instructions to the 12 27 11 [AR 511 (Riverside Medical Center General Ortho Clinic Note [AR 540 (Riverside Medical Center Emergency Patient dated January 10, 2015)]. 28 dated June 24, 2015)]. 9 1 The State Agency medical consultants assessed medium 2 residual 3 reconsideration review consultant assessed visual limitations 4 (Exhibits 1A and 3A). 5 not have more than mild visual limitations and no visual 6 limitations 7 security income. Accordingly, greater weight was afforded to 8 the initial level assessment, limiting the claimant to medium 9 work 10 with functional were capacity however, the The claimant testified that she does alleged occasional assessments; in her postural application activities and for no social visual limitations (Exhibit 1A). 11 12 (AR 58). 13 14 Contrary to Plaintiff’s contention, the ALJ’s RFC determination 15 took into account the problems Plaintiff experienced with her knees 16 after February 2014. See Valentine v. Comm’r of Social Security Admin., 17 574 F.3d 685, 690 (9th Cir. 2009)(“[A]n RFC that fails to take into 18 account a claimant’s limitations is defective.”). 19 20 As the ALJ noted, evidence in the record reflected the quick 21 resolution of Plaintiff’s right knee issues following her June 30, 2014 22 surgery. (See AR 975, 1087; see also AR 554-55, 561, 619-33). Further, 23 the record does not contain any medical opinion or evidence indicating 24 that as of February 2014 Plaintiff was not able to perform medium work 25 based on her right knee issues. Although Plaintiff claims that Dr. To’s 26 June 13, 2013 opinion did not take into consideration the June 13, 2013 27 X-ray of Plaintiff’s right knee (see Joint Stip. at 6, citing AR 403 28 10 1 [California Care Medical Group X-Ray Report, stating that, with respect 2 to Plaintiff’s right knee, “[t]here is degenerative changes of the 3 medial joint space apparent as marginal ostrophytes and moderate 4 narrowing of the joint space”)], it appears that Dr. To did review that 5 X-ray (see AR 400), and, as Plaintiff admits, the X-ray of Plaintiff’s 6 right knee revealed an “[e]ssentially negative study” (AR 403). 7 8 The ALJ also noted, as reflected in the record, Plaintiff’s quick 9 recovery from her left knee surgery on December 8, 2014 (see AR 739, 848 10 [a Riverside Medical Center Report dated December 8, 2014 and a 11 Riverside Medical Center Discharge Summary, both stating that Plaintiff 12 had a total left knee arthroplasty on December 8, 2014]).13 Although 13 Plaintiff complained about pain in her left knee for a few months 14 following the surgery (see AR 610-11 [December 17, 2014], 609 [December 15 18, 2014], 608 [December 23, 2014], 607 [December 24, 2017], 606 16 [December 31, 2014], 605 [January 7, 2015], 604 [January 9, 2015], 531 17 [January 10, 2015], 603 [January 16, 2015], 551, 602 [January 21, 2015], 18 601 [January 23, 2015], 599 [January 30, 2015], 529 [March 4, 2015]), 19 the issues with her left knee appear to have mostly stabilized by the 20 end of January 2015 (see AR 540 [Riverside Medical Center Instructions 21 to the Emergency Patient dated January 10, 2015, stating: “X-ray was 22 normal. Hardware seems intact. Continue with [physical therapy]. . . 23 Cont pain meds if needed.”], 600 [a Riverside Medical Center Physical 24 25 13 It is not clear when Plaintiff began to have issues with her (See AR 588 [a Riverside Medical Center Clinic Note dated February 26, 2014, stating that Plaintiff reported she is having difficulty walking due to pain], 574 [a Riverside Medical Center Clinic Note dated May 21, 2014, stating that Plaintiff reported having bilateral knee pain]). 26 left knee. 27 28 11 1 Therapy Outpatient Note dated January 28, 2015, noting improvement in 2 the left knee]), and appear to have been resolved toward the end of June 3 2015 (see AR 511 [a Riverside Medical Center Clinic Note dated June 24, 4 2015, stating that Plaintiff reported her left knee was “doing well” and 5 that “pain persists yet is improving”, that the incision was well 6 healed, that Plaintiff’s range of motion in her left knee was O to 100 7 degrees, that Plaintiff was referred to continuing physical therapy, and 8 that no changes to Plaintiff’s current medication were made and no long9 term medications were prescribed]). Moreover, there is no medical 10 opinion or evidence in the record (other than the finding of temporary 11 disability for 12 weeks, see AR 769, 739) indicating that as of February 12 2014, Plaintiff was not able to perform medium work as a result of her 13 left knee issues. 14 15 Plaintiff has not presented evidence to contradict the ALJ’s 16 determination, generally in accordance with the opinions of Drs. To, Vu, 17 and Bitonte, that Plaintiff had the RFC to do medium work, both before 18 and after February 2014. See Tacket v. Apfel, 180 F.3d 1094, 1098 (9th 19 Cir. 1999)(“The burden of proof is on the claimant as to steps one to 20 four.”). The Court finds that the ALJ’s determination that Plaintiff 21 had the RFC to perform medium work as of February 2014 was supported 22 by substantial evidence. 23 // 24 // 25 // 26 27 28 12 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner is 4 AFFIRMED. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 DATED: February 27, 2018. 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 13
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