Michelle Dimetrea James v. Nancy A. Berryhill, No. 5:2018cv02076 - Document 20 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Michelle Dimetrea James v. Nancy A. Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MICHELLE D.J., ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, DEPUTY ) COMMISSIONER FOR OPERATIONS, ) SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. ED CV 18-2076-E MEMORANDUM OPINION 17 PROCEEDINGS 18 19 Plaintiff filed a complaint on September 27, 2018, seeking review 20 21 of the Commissioner’s denial of benefits. The parties consented to 22 proceed before a United States Magistrate Judge on November 5, 2018. 23 Plaintiff filed a motion for summary judgment on March 5, 2019. 24 Defendant filed a motion for summary judgment on April 3, 2019. 25 Court has taken the motions under submission without oral argument. 26 See L.R. 7-15; “Order,” filed October 2, 2018. 27 /// 28 /// The Dockets.Justia.com BACKGROUND 1 2 Plaintiff, a former customer service representative, asserts 3 4 disability since November 1, 2012 – the day she was terminated from 5 her job – based on alleged degenerative disc disease, sciatica, “RLS” 6 (restless leg syndrome), a cyst on her left wrist and high blood 7 pressure (Administrative Record (“A.R.”) 58, 169-81, 213-14). 8 An Administrative Law Judge (“ALJ”) reviewed the record and heard 9 10 testimony from Plaintiff and a vocational expert (A.R. 19-478). 11 ALJ found that Plaintiff had severe degenerative disc disease of the 12 lumbar spine, obesity, a history of left wrist ganglion cyst status 13 post removal, a history of restless leg syndrome and bilateral knee 14 arthritis (A.R. 22). 15 retains the residual functional capacity to perform certain light 16 work,1 including Plaintiff’s past relevant work as actually and 17 generally performed (A.R. 23-26; see also A.R. 58-62 (vocational 18 expert’s testimony, which the ALJ adopted)). 19 denied review (A.R. 1-3). 20 /// 21 /// 22 /// 23 /// The ALJ also found, however, that Plaintiff The Appeals Council 24 25 26 27 28 The 1 Specifically, the ALJ found Plaintiff retains a capacity for light work limited to occasional postural activities, no climbing of ladders, ropes or scaffolds, no work around unprotected heights or dangerous machinery, and frequent but not constant use of the left hand for fine and gross manipulation (A.R. 23). 2 STANDARD OF REVIEW 1 2 Under 42 U.S.C. section 405(g), this Court reviews the 3 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 9 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. Substantial evidence is “such 10 relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” 12 (1971) (citation and quotations omitted); see also Widmark v. 13 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 3 DISCUSSION 1 2 After consideration of the record as a whole, Defendant’s motion 3 4 is granted and Plaintiff’s motion is denied. The Administration’s 5 findings are supported by substantial evidence and are free from 6 material2 legal error. Plaintiff’s contrary arguments are unavailing. 7 8 I. Summary of the Medical Record 9 10 Plaintiff asserts disability since November 1, 2012, when she was 11 terminated from her job as a customer service representative (A.R. 37, 12 58). 13 was terminated but was unable to obtain a job (A.R. 37). 14 sometime in 2015, Plaintiff has been doing “domestic work,” taking 15 care of her boyfriend at home through IHSS (a state program) in return 16 for approximately $300 per month (A.R. 36-38, 199). Plaintiff testified that she applied for regular work after she Beginning 17 18 Plaintiff testified that she no longer can work because of her 19 back condition which has caused pain to radiate down her left leg 20 since April, 2014, when she fell and injured her ankle, back and wrist 21 (A.R. 38-39). 22 and went to doctors at Harbor UCLA for her medical needs before she 23 was placed on Medi-Cal (A.R. 39). 24 documents in the Administrative Record. Plaintiff said she initially had no health insurance There are no Harbor UCLA medical As detailed below, the 25 26 2 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 4 1 available treatment records consist mostly of primary care treatment 2 notes from Drs. Abdul Masoud and Muhammed Memon with the Sunshine 3 Medical Clinic, and treatment notes from neurologist Dr. Salvatore 4 Danna and later providers, all of which post-date Plaintiff’s 2014 5 fall (A.R. 339-60, 376-84, 431-61). 6 7 A. Treatment Records from Sunshine Medical Clinic 8 9 The earliest medical records are x-ray reports from an April 9, 10 2014 visit to the Lakewood Regional Medical Center Emergency Room 11 after Plaintiff’s reported fall (A.R. 327-34). 12 reportedly showed soft tissue swelling and a three millimeter osseous 13 sliver dorsal to the navicular (A.R. 327-28). 14 pelvis showed no radiographically evident fracture or dislocation 15 (A.R. 329-30). A right ankle x-ray X-rays of the hip and 16 17 Plaintiff followed up with Dr. Masoud who, along with Dr. Memon, 18 treated Plaintiff from April of 2014 through at least February of 2017 19 (A.R. 339-60, 376-84). 20 had fallen and had gone to the emergency room for x-rays, and she was 21 complaining of right ankle pain, foot pain and a history of 22 hypertension (A.R. 358). 23 mass index of 42.28 (id.). 24 abnormal findings apart from wearing a brace on her right foot which 25 was tender over the heel medially, tenderness in the lumbar spine, and 26 a ganglion cyst over the left wrist (id.). 27 normal, she was sensorily intact, she had no edema, and she had a 28 normal range of motion in all joints (id.). On April 23, 2014, Plaintiff reported that she She weighed 270 pounds, with a reported body On examination, she reportedly had no 5 Her pulse rates were She was assessed with 1 hypertension, contusion and morbid obesity, prescribed medication for 2 the hypertension, and referred to an orthopedic surgeon to look into 3 the possibility of an avulsion fracture to her right foot (A.R. 358- 4 59). 5 On May 19, 2014, Plaintiff presented, complaining of right ankle 6 7 pain, back pain for three months with increasing intensity, and asking 8 for a referral to have her ganglion cyst removed (A.R. 356). 9 examination, Plaintiff was wearing a left wrist brace and a right 10 ankle brace, and she reportedly had mild tenderness in the lumbar 11 spine (id.). 12 and Robaxin (A.R. 356-57). On She was assessed with back pain and prescribed Ultram 13 On June 26, 2014, Plaintiff presented, complaining of bilateral 14 15 knee pain on and off for years and left hand pain from her fall (A.R. 16 354). 17 her knees and a tender left “MT” head (A.R. 354). 18 with arthritis and referred to an orthopedist and for weight loss 19 measures and diagnostic imaging (A.R. 355).3 20 /// 21 /// On examination, she reportedly had crepitus and deformity in She was assessed 22 23 24 25 26 27 28 3 A June, 2014 x-ray of the lumbar spine showed degenerative changes with disc disease and facet hypertrophy, and minimal anterolisthesis of L4 over L5 with some question on extension (A.R. 449). Bilateral knee x-rays showed mild narrowing of the medial compartment on the left and right side, and some calcification of the insertion of the patellar tendon and quadriceps tendon to the patella on the right side (A.R. 448). A left hand x-ray showed questionable minimal narrowing of the interphalangeal joints with no acute fracture or dislocation (A.R. 447). 6 1 On August 4, 2014, Plaintiff presented for an EKG and blood test 2 before her ganglion cyst removal, and she asked for a neurologist and 3 an orthopedist referral for her back and knee pain (A.R. 351). 4 examination, Plaintiff reportedly had crepitus and deformity in her 5 knees and moderate tenderness in the lumbar spine (A.R. 351-52). 6 was assessed with lumbar radiculopathy and ganglion of the tendon 7 sheath, and she was referred as requested (A.R. 352). 8 underwent surgery to remove the left wrist ganglion cyst on August 8, 9 2014 (A.R. 291-92, 309). On She Plaintiff 10 On November 4, 2014, Plaintiff presented, complaining of 11 12 allergies and of having “charlie horses” in the morning when she wakes 13 up (A.R. 349). 14 assessed with allergic rhinitis and prescribed Singulair (A.R. 349- 15 50). Examination reportedly was normal (id.). She was 16 17 On December 23, 2014, Plaintiff presented, asking for a referral 18 to a surgeon to remove the cyst on her left wrist, which had recurred 19 (A.R. 347). 20 prescribed medication (A.R. 347-48). 21 consulted a surgeon to remove her left wrist ganglion cyst (A.R. 289- 22 90). She was assessed with sleep related leg cramps and On January 8, 2015, Plaintiff 23 24 On February 9, 2015, Plaintiff presented, complaining of left 25 index finger pain for the past few months (A.R. 345). 26 there was some mild tenderness (id.). 27 bradycardia and referred for hand imaging and lab work (A.R. 346). 28 April 1, 2015, Plaintiff presented, complaining of left knee pain and 7 On examination, She was assessed with On 1 pain over the patellar region with extension (A.R. 343). She was 2 prescribed Mobic (id.). 3 preoperative visit for her left wrist ganglion cyst surgery (A.R. 383- 4 84).4 5 wrist surgery by the time of the administrative hearing (see A.R. 44- 6 45), there are no treatment notes in the Administrative Record 7 regarding Plaintiff’s second left wrist surgery. On May 21, 2015, Plaintiff presented for a Although Plaintiff reportedly had undergone her second left 8 9 On August 20, 2015, Plaintiff presented for results of a left 10 knee MRI (A.R. 381-82).5 11 swelling and tenderness in her left knee, but walked independently 12 (id.). 13 for a lateral meniscal tear (A.R. 382). 14 for any orthopedic consult regarding Plaintiff’s knee. 15 is from June 29, 2016, when Plaintiff returned to refill her 16 medications, at which time she reportedly had crepitus in both knees 17 but no effusion (A.R. 378-79). On examination, she reportedly had moderate She was assessed with knee pain and referred to an orthopedist The record contains no notes The next note 18 19 20 On February 14, 2017, Plaintiff returned, requesting referral to a different neurologist for managing sciatica and pain because Dr. 21 22 23 24 25 26 27 28 4 Plaintiff had presented to a cardiologist for a cardiac clearance for surgery on May 5, 2015 (A.R. 427-29). Plaintiff reportedly was a current smoker who drinks alcohol on a social basis only and had experimented with marijuana (A.R. 427). Plaintiff was assessed with precordial chest pain and smoking and was cleared for surgery (A.R. 428-29). 5 A July, 2015 MRI of the left knee showed tricompartmental osteoarthritis, shallow trochlear groove, medial and lateral compartment chondromalacia, anterior horn lateral meniscus tear, grade 2 MCL sprain and suprapatellar space effusion and Baker’s cyst (A.R. 406-07). 8 1 Danna was retiring (A.R. 376-77). She also sought authorization for a 2 right knee injection (id.). 3 and dorsalgia, given authorization for a right knee injection and 4 referred to a new neurologist (id.).6 Plaintiff was assessed with arthropathy 5 B. 6 Treatment Records from Neurologist Dr. Salvatore Danna 7 On August 26, 2014, Plaintiff had consulted with Dr. Danna, who 8 9 had diagnosed lumbar disc disease with nerve root compression and 10 sciatica (A.R. 431). Examination reportedly had shown decreased range 11 of motion and spasms in the calves and intrinsic foot muscle groups, 12 tenderness in the sciatic notch bilaterally, and nerve root 13 compression as evidenced by the absence of reflexes at the ankle 14 (id.). 15 Norco, Robaxin, Mobic and Neurontin for Plaintiff’s pain and 16 radiculopathy, and a possible injection at the L5 facet joint if 17 Plaintiff’s pain did not resolve with medication (id.). Dr. Danna recommended an EMG study of the lower extremities, 18 On October 10, 2014, Plaintiff was given an injection in her L5 19 20 facet with reported “excellent results” (A.R. 445). She apparently 21 was responding favorably to “conservative” measures, including nerve 22 root compression and facet blocks (id.). 23 Plaintiff presented for another L5 facet injection, with excellent 24 results reported (A.R. 444). 25 /// 26 /// On December 3, 2014, 27 6 28 There are no treatment notes from Dr. Friedburg in the record. 9 1 On January 15, 2015, Plaintiff presented, complaining of cold 2 weather exacerbation of her lumbar disc disease causing shooting pain 3 and tenderness (A.R. 443). 4 medications and indicated he would request a facet block in the near 5 future (id.). 6 injection, again with excellent results reported (A.R. 442). Dr. Danna continued Plaintiff’s On March 9, 2015, Plaintiff was given a L5 facet 7 8 9 On April 16, 2015, Plaintiff presented, reporting marked improvement in her symptoms with some continued lower extremity 10 cramping (A.R. 441). Her medications were continued (id.). 11 On May 19, 2015, Plaintiff was given an L5 facet injection and her 12 medications were continued (A.R. 440). 13 14 On July 10, 2015, Dr. Danna continued Plaintiff’s medications 15 (A.R. 439). On July 31, 2015, Plaintiff was given a facet block 16 injection in the L5-S1 facet for low back pain (A.R. 452). 17 September 4, 2015, Plaintiff was given another injection in the L5 18 facet, with an excellent reaction reported (A.R. 451). On 19 20 On October 1, 2015, Plaintiff presented, reporting continued low 21 back pain and muscle spasms in her calf and foot (A.R. 450). Testing 22 to date, which included an MRI a year earlier, reportedly had shown 23 only “mild degenerative spine disease” and Plaintiff was not a 24 candidate for surgery (id.). 25 (id.). Plaintiff was referred for another MRI 26 27 28 On November 12, 2015, Plaintiff presented for an EMG and nerve conduction study of her lower extremities, which reportedly showed 10 1 findings consistent with rare fibrillation potential and sharp wave in 2 the L5 distribution, especially on the right side, which Dr. Danna 3 characterized as a “mildly abnormal EMG of the lower extremities 4 showing evidence for lumbar disc disease, with nerve compression, and 5 radiculopathy” (A.R. 461). 6 that Plaintiff had an excellent response to medical management and was 7 responding favorably to medications and injections of Depo-Medrol and 8 Sensorcaine (A.R. 460). 9 was highly inflamed and radicular with intense pain shooting into the On November 18, 2015, Dr. Danna reported Dr. Danna reported that Plaintiff’s L5 nerve 10 hamstring, calf and foot, for which he gave Plaintiff an injection and 11 ordered follow up in several months (id.). 12 On January 6, 2016, Plaintiff presented for medication 13 14 management, and Dr. Danna continued Mobic for arthritis, Flexeril for 15 muscle spasms, Lyrica for neuritic pain, and Norco for intense pain 16 (A.R. 459). 17 Plaintiff’s next appointment (id.). 18 presented, reporting that she had improved overall with her medication 19 regimen (A.R. 458). 20 and sensory dysesthesia along the L5-S1 root to the sciatic nerve 21 (id.). 22 Ambien for sleep (id.). Dr. Danna also requested a facet block injection for On March 10, 2016, Plaintiff On examination, she reportedly had back spasms Dr. Danna continued Plaintiff’s medications and prescribed 23 On May 12, 2016, Plaintiff presented, complaining of severe low 24 25 back pain with radicular sciatic injury (A.R. 457). 26 Plaintiff injections and continued her medications (id.). 27 /// 28 /// 11 Dr. Danna gave 1 On May 24, 2016, Plaintiff presented, complaining of low back 2 pain and bladder pain with some incontinence (A.R. 456). Dr. Danna 3 assessed cervical disc disease with nerve root compression and 4 radiculopathy, spondylosis of the lumbar spine with anterolisthesis on 5 the L5 joint space causing spinal stenosis, severe knee arthritis, and 6 neurological changes of bladder dysfunction (id.). 7 medications were continued, and Dr. Danna requested approval for a 8 lumbosacral injection (id.). Plaintiff’s 9 10 On August 4, 2016, Plaintiff presented, complaining of headaches, 11 lumbar disc disease, cervical disc disease, nerve root compression and 12 sciatica (A.R. 455). 13 to help relieve the tension and strain to her lower back (id.). 14 Plaintiff reportedly was “responding fairly” to her “present medical 15 management,” but had required a sciatic nerve injection two months 16 earlier (id.). 17 decreased range of motion and spasticity of the neck and shoulders 18 with radiculopathy, severe low back pain with radiculopathy, absent 19 reflexes at the ankle and sensory dysesthesia of the L5-S1 nerve root 20 distribution (id.). 21 root compression, bilateral sciatica, osteoarthritis of the 22 lumbosacral and cervical spine, and tension cephalgia (id.). 23 Danna continued Plaintiff’s medications (id.). 24 Plaintiff received a L5 nerve root injection (A.R. 434). Plaintiff reported that she had to have a walker On examination, Dr. Danna reported that Plaintiff had Dr. Danna assessed lumbar disc disease with nerve Dr. On August 30, 2016, 25 26 On September 30, 2016, Plaintiff presented in “moderate distress” 27 on examination, after having an injection the month before for her 28 lumbar spondylosis and bilateral L5 peripheral nerve root (A.R. 454). 12 1 Plaintiff reportedly had severe low back pain with radiculopathy, 2 sensory dysesthesia and weakness at the L5 level, calcific tendonitis 3 and osteoarthritis with diminished reflexes of the knee and ankle, and 4 peripheral neuropathy related to metabolic insufficiency (A.R. 454). 5 Dr. Danna continued Plaintiff’s medications (id.). 6 7 On November 17, 2016, Plaintiff presented, reporting improvement 8 in her local pain and dysfunction of the lumbar spine with injections 9 (A.R. 453). 10 Dr. Danna gave Plaintiff a peripheral nerve block at the L5 nerve root level and continued her medications (id.). 11 12 On January 9, 2017, Plaintiff presented, reporting that her 13 condition was worsened by cold, damp and rainy weather, and that she 14 supposedly had severe weakness of the lower extremities when she 15 walked any given distance (A.R. 437). 16 reportedly had decreased range of motion in the cervical spine, severe 17 low back pain with radiculopathy and absent reflexes at the ankle 18 (id.). 19 reported increasing amounts of pain and leg weakness, and continued 20 her medications (id.). On examination, Plaintiff Dr. Danna recommended a repeat EMG study given Plaintiff’s 21 On February 9, 2017, Plaintiff presented for an EMG study, 22 23 complaining of pain worsening with cold, damp weather (A.R. 436). 24 Plaintiff reportedly had a “mildly abnormal” EMG, which showed 25 evidence of nerve root compression but no significant denervation 26 (id.). 27 Plaintiff for a low back injection (id.). 28 /// Dr. Danna continued Plaintiff’s medications and scheduled 13 1 On March 6, 2017, Plaintiff presented, requesting an L5 nerve 2 root block, claiming that she was still “surgically impaired” in her 3 left foot from a neuroma that was removed, leaving her with burning 4 pain and tingling and scar tissue reaction (A.R. 435).7 5 examination, Plaintiff evidenced severe sensory loss and tenderness of 6 the arch and plantar surface of the left foot and sensory dysesthesia 7 along the sciatic nerve distribution, spasms and tension in the 8 cervical spine, and decreased movement of the low back, hip and knee 9 areas (id.). On Dr. Danna diagnosed traumatic injury to the left ankle 10 and foot and continued Plaintiff’s medications (id.). On March 28, 11 2017, Plaintiff was given an L5 nerve root injection, with excellent 12 results reported (A.R. 432). 13 14 On May 1, 2017, Plaintiff presented, reporting she was doing 15 “quite well” with “conservative” treatment, but she reportedly had 16 bladder frequency as a result of neurogenic difficulty for her low 17 back pain and lumbar disc disease, and sharp burning pain in her left 18 foot where she had surgery (A.R. 433). 19 Plaintiff’s medications and recommended the use of a front-wheeled 20 walker “for activity levels” (id.). Dr. Danna continued 21 22 C. Subsequent Treatment with Pain Management Specialist Dr. Ajay Patel and Neurologist Dr. Munther Hijazin 23 24 25 Meanwhile, Plaintiff consulted with pain management specialist 26 Dr. Ajay Patel on April 18, 2017, complaining of constant daily low 27 7 28 There are no medical records regarding the foot surgery. 14 1 back pain radiating to the lower extremities with associated numbness 2 and tingling since her fall in 2014, worsened by prolonged walking, 3 standing, bending and sitting, and relieved by medications, rest and 4 lying supine (A.R. 372). 5 Soma and Gabapentin (id.). 6 non alcoholic drinker (A.R. 373). 7 reportedly had myofascial trigger points present in the bilateral 8 paraspinal muscles and traps, limited range of motion in the neck and 9 back, increased lumbar lordosis, positive straight leg raising testing Plaintiff reportedly had been taking Norco, Plaintiff reportedly was a nonsmoker and On examination, Plaintiff 10 and an antalgic gait (A.R. 373-74). Dr. Patel assessed lumbosacral 11 radiculopathy, muscle spasm, intervertebral disc displacement in the 12 lumbosacral region, myalgia, other spondylosis of the lumbosacral 13 region and low back pain (A.R. 374). 14 medications (id.). Dr. Patel continued Plaintiff’s 15 16 On June 23, 2017, Plaintiff consulted with neurologist Dr. 17 Munther Hijazin, complaining of back pain, numbness and tingling in 18 the lower extremities, walking difficulty and balance problems (A.R. 19 462-64). 20 examination, Plaintiff reported weakness of the left lower extremity 21 and she appeared to ambulate with difficulty (id.). 22 with back pain and lumbosacral radiculopathy, and a MRI and nerve 23 conduction studies were ordered (id.). 24 Plaintiff used a walker or any other assistive device during this 25 /// 26 /// 27 /// 28 /// Plaintiff reportedly smoked every day (A.R. 463). 15 On She was assessed There is no indication 1 visit (A.R. 462-64).8 2 3 D. Physical Therapy Treatment Notes 4 5 The record also contains treatment notes for a short course of 6 physical therapy. A physical therapy note from June 8, 2017, states 7 that Plaintiff complained of bilateral knee pain and a torn meniscus 8 following her fall (A.R. 467). 9 assistance of a “SPC” (single point cane), with severe tenderness in Plaintiff reported ambulating with the 10 both knees, standing limited to five minutes, walking limited to five 11 minutes, sitting limited to 30 minutes, an inability to squat or 12 kneel, and “severe” limits sitting to standing (id.). 13 offered aquatic therapy and exercises to decrease her pain (A.R. 14 468).9 Plaintiff was 15 16 According to a follow-up note dated July 11, 2017, Plaintiff had 17 attended six physical therapy sessions and had made “progress” (A.R. 18 469-77). 19 but reportedly used a cane on and off for long distances (A.R. 469). 20 Plaintiff reported difficulty with daily activity, mainly with 21 standing and ambulation (A.R. 470). Plaintiff then was ambulating without an assistive device 22 8 23 24 25 A July, 2017 lumbar spine MRI showed L3-L4 and L4-L5 bilateral foraminal narrowing, mild acquired spinal stenosis, mild bilateral foraminal narrowing, and a two millimeter posterior disc protrusion at L5-S1 with mild left foraminal narrowing (A.R. 465-66). The record does not contain a follow up nerve conduction study. 26 9 27 28 There is also a letter from Apple Care Medical Group dated June 8, 2017, stating that Plaintiff had been authorized to receive a folding walker with wheels, as reportedly requested by Dr. Patel (A.R. 478). 16 1 E. Consultative Examiner and State Agency Physician Opinions 2 3 Consultative examiner Dr. Rocely Ella Tamayo prepared an Internal 4 Medicine Evaluation for Plaintiff dated June 24, 2015 (A.R. 363-68). 5 Plaintiff complained of pain from the upper back down to the shoulders 6 and lower back, hips and groin area since a fall one year before (A.R. 7 363). 8 sitting, and said she had undergone epidural injections three times 9 since August of 2014, which provided transient help (id.). Plaintiff reported arthritis, pain with walking, standing and Plaintiff 10 also reported that pain medications provided only partial help (id.). 11 Plaintiff said that she had two surgeries to remove a left wrist cyst, 12 and had a bunion removed from the left foot in 2005, which resulted in 13 occasional sharp pain since this surgery (A.R. 363-64). 14 also reported having restless leg syndrome for the past seven months 15 with right leg cramping (A.R. 364). 16 20 minutes and lift 20 pounds, as well as drive, take care of her own 17 needs, feed the dog, go to the store or to the doctor, and make 18 handicrafts (id.). 19 Hydrochlorothiazide, Cycloenzaprine, Hydromorphone, Meloxicam, 20 Montlukast, Pramipexole, Amlodipine and Hydrocodone-Acetaminophen 21 (id.). 22 said she had been using medical cannabis for the last 20 years (id.). Plaintiff Plaintiff reportedly could walk Plaintiff was taking Methocarbamol, Gabapentin, Plaintiff admitted drinking vodka moderately since age 17 and 23 24 On examination, Plaintiff reportedly had a normal gait without 25 the need for an assistive device, and pain in her left wrist (A.R. 26 365-67). 27 status post ganglion cyst removal with residual pain, a history of 28 intermittent right foot pain, obesity, a history of restless leg Dr. Tamayo diagnosed hypertension, a history of back pain, 17 1 syndrome and chronic nicotine abuse, alcohol use and marijuana use 2 (A.R. 367). 3 work with frequent kneeling and squatting, and had the ability to use 4 the left hand for fine fingering and gross manipulation frequently 5 (id.). Dr. Tamayo opined that Plaintiff was capable of light 6 A state agency physician reviewed the record in July of 2015 and 7 8 opined that Plaintiff was capable of light work with some postural 9 limitations (i.e., no more than frequent climbing of ramps and stairs, 10 occasional climbing of ladders, ropes and scaffolds, and frequent 11 stooping, kneeling, crouching and crawling) given her obesity (A.R. 12 74-75). 13 opinion as “too restrictive than the totality of evidence supports” 14 (A.R. 72-76 (explaining that ganglion cysts almost never result in 15 functional limitations)). This physician gave “less than great weight” to Dr. Tamayo’s 16 17 II. Substantial Evidence Supports the Conclusion Plaintiff Can Work. 18 19 A social security claimant bears the burden of “showing that a 20 physical or mental impairment prevents [her] from engaging in any of 21 [her] previous occupations.” 22 (9th Cir. 1987); accord Bowen v. Yuckert, 482 U.S. 137, 146 n.5 23 (1987). 24 working for twelve continuous months. 25 F.2d 586, 589 (9th Cir. 1985), cert. denied, 475 U.S. 1025 (1986). Sanchez v. Secretary, 812 F.2d 509, 511 Plaintiff must prove her impairments prevented her from See Krumpelman v. Heckler, 767 26 27 28 Substantial evidence supports the conclusion that Plaintiff failed to carry her burden in this case. 18 The Administrative Record 1 contains relevant evidence that “a reasonable mind might accept as 2 adequate to support [the] conclusion” that Plaintiff was not disabled 3 during the relevant period of time. 4 U.S. 389, 401 (1971). See Richardson v. Perales, 402 5 6 None of Plaintiff’s treating physicians offered any opinion 7 regarding Plaintiff’s residual functional capacity. Consultative 8 examiner Dr. Tamayo opined that Plaintiff was capable of light work 9 with frequent kneeling and squatting, and the ability to use the left 10 hand for fine fingering and gross manipulation frequently (A.R. 367). 11 Dr. Tamayo’s opinion furnishes substantial evidence to support the 12 ALJ’s decision. 13 2007) (examining physician’s opinion based on independent clinical 14 findings constitutes substantial evidence to support a non-disability 15 determination); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 16 2001) (same). See Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 17 18 The non-examining state agency physician’s similar opinion lends 19 additional support to the ALJ’s decision. See Andrews v. Shalala, 53 20 F.3d 1035, 1041 (9th Cir. 1995) (where the opinions of non-examining 21 physicians do not contradict “all other evidence in the record” an ALJ 22 properly may rely on these opinions); Curry v. Sullivan, 925 F.2d 23 1127, 1130 n.2 (9th Cir. 1990) (same). 24 25 Plaintiff argues that the consultative examiner and state agency 26 physician opinions are too dated to be considered reliable, given 27 Plaintiff’s claim that she has worsened since 2015. 28 Motion, pp. 5-6 (citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 19 See Plaintiff’s 1 1985) (finding that ALJ erred in failing to consider more recent 2 medical opinion opining that the claimant could not work in a job 3 requiring the use of his lower extremities); Wier ex rel. Weir v. 4 Heckler, 734 F.2d 955, 963-64 (3d Cir. 1984) (same, where ALJ relied 5 on non-examining physicians’ reports that were several years old and 6 ALJ ignored later opinions from examining doctors); Orn v. Astrue, 495 7 F.3d at 632-34 (ALJ could not rely on non-examining physician’s 8 opinion as substantial evidence to support adverse disability decision 9 where that opinion relied on the same objective evidence relied upon 10 by contrary medical opinions by treating physicians). Plaintiff also 11 cites some examination findings post-dating the opinions and alleges 12 that she suffered a lateral meniscus tear in the left knee assertedly 13 necessitating an assistive device. 14 (citing A.R. 382, 406, 435-36, 454-55, 478); A.R. 281-85 (attorney 15 letter brief to the Appeals Council). 16 residual functional capacity for no more than sedentary exertion, 17 eroded by the need for an assistive device. 18 p. 8. 19 supporting the ALJ’s decision. See Plaintiff’s Motion, p. 6 Plaintiff argues that she has a See Plaintiff’s motion, Plaintiff’s arguments do not render insubstantial the evidence 20 21 Unlike the cases Plaintiff cites, there is no evidence in the 22 present case that the ALJ ignored any recent medical opinions in favor 23 of the opinions of the consulting examiner and state agency physician. 24 Plaintiff’s counsel was aware of the medical record and did not ask 25 the ALJ to order an updated consultative examining opinion. 26 32-65. 27 documenting sufficient deterioration in Plaintiff’s medical condition 28 to call into question the validity of Dr. Tamayo’s opinion or the See A.R. Plaintiff did not produce objective medical evidence 20 1 state agency physician’s opinion. To the contrary, the record 2 reflects that Plaintiff complained of knee pain in June of 2014 3 (see A.R. 354) and again in April of 2015 (see A.R. 343), prior to 4 both opinions at issue. 5 Some evidence suggests Plaintiff may have needed an assistive 6 7 device beginning some time after the opinions at issue. Plaintiff was 8 first observed to be using a walker in August of 2016 (A.R. 455). 9 Danna recommended the use of a walker in May of 2017 (A.R. 433). 10 Plaintiff reportedly was using a single point cane at a physical 11 therapy session in June of 2017 (but not during a session in July of 12 2017) (A.R. 467, 469). 13 2017 (A.R. 478). 14 asserted need for an assistive device, given Plaintiff’s medical 15 history, assertedly “mild” clinical findings and “minimal” 16 neurological deficits (A.R. 25). 17 erred in rejecting Plaintiff’s alleged need for an assistive device, 18 or in failing to find that Plaintiff retained a residual functional 19 capacity for only sedentary work as Plaintiff now suggests, any such 20 error was harmless, given the vocational expert’s testimony. Dr. Plaintiff was approved for a walker in June of However, the ALJ considered and rejected Plaintiff’s Moreover, to the extent the ALJ 21 The vocational expert testified that Plaintiff’s past relevant 22 23 work as a customer service representative (DOT 239.362-014), was 24 skilled, sedentary work as actually and generally performed (A.R. 58- 25 59). 26 capacity the ALJ found to exist could perform Plaintiff’s past 27 relevant work as a customer service representative as actually and 28 /// The expert testified that a person with the residual functional 21 1 generally performed (A.R. 59-60).10 2 expert, even if standing and walking were further limited to two hours 3 in an eight-hour day, a person so limited could still perform work as 4 a customer service representative (A.R. 60). 5 further testified, that if the person also required an assistive 6 device for prolonged ambulation, such requirement would not impact the 7 occupation of customer service representative (id.). According to the vocational The vocational expert 8 9 The vocational expert’s testimony furnishes substantial evidence 10 that there exist significant numbers of jobs Plaintiff can perform. 11 See Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); 12 Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986); see generally 13 Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995) (ALJ 14 properly may rely on vocational expert to identify jobs claimant can 15 perform); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 404.1520, 416.920; 16 see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (a 17 claimant is not disabled if she can perform her past relevant work as 18 she actually performed it or as such work is generally performed). 19 20 To the extent the evidence of record is conflicting, the ALJ 21 properly resolved the conflicts. See Treichler v. Commissioner, 775 22 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to the ALJ” to 23 resolve conflicts and ambiguities in the record). 24 uphold the administrative decision when the evidence “is susceptible The Court must 25 26 10 27 28 The vocational expert explained that the customer service representative job required frequent (but not constant) fingering (i.e., reaching and handling for six hours out of an eight-hour day) (A.R. 61-62). 22 1 to more than one rational interpretation.” Andrews v. Shalala, 53 2 F.3d at 1039-40. 3 interpretation of the evidence in the present case notwithstanding any 4 conflicts in the record. The Court will uphold the ALJ’s rational 5 6 III. The ALJ did not Materially Err in Discounting Plaintiff’s Subjective Complaints. 7 8 Plaintiff challenges the legal sufficiency of the ALJ’s stated 9 10 reasons for discounting Plaintiff’s subjective complaints. See 11 Plaintiff’s Motion, pp. 8-11. 12 credibility is entitled to “great weight.” 13 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 14 (9th Cir. 1985). 15 medically determinable impairments reasonably could be expected to 16 cause some degree of the alleged symptoms of which the claimant 17 subjectively complains, any discounting of the claimant’s complaints 18 must be supported by specific, cogent findings. 19 622 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 20 834 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 21 (9th Cir. 1996) (indicating that ALJ must offer “specific, clear and 22 convincing” reasons to reject a claimant’s testimony where there is no 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// An ALJ’s assessment of a claimant’s Anderson v. Sullivan, 914 Where, as here, an ALJ finds that the claimant’s 23 See Berry v. Astrue, 1 evidence of “malingering”).11 2 sufficiently specific to allow a reviewing court to conclude the ALJ 3 rejected the claimant’s testimony on permissible grounds and did not 4 arbitrarily discredit the claimant’s testimony.” 5 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (internal citations and 6 quotations omitted); see also Social Security Ruling (“SSR”) 96-7p 7 (explaining how to assess a claimant’s credibility), superseded, SSR 8 16-3p (eff. Mar. 28, 2016).12 9 sufficient reasons for finding Plaintiff’s subjective complaints less 10 An ALJ’s credibility finding “must be See Moisa v. As discussed below, the ALJ stated than fully credible. 11 12 Plaintiff testified that she could not work because of her back 13 condition, which supposedly has caused pain to radiate down her left 14 leg since her fall in 2014 (A.R. 38-39). 15 could walk for only a half a block and stand for only five to 10 Plaintiff estimated that she 16 17 18 19 20 21 22 23 24 11 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d at 1102; Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 12 25 26 27 28 The appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16-3p “makes clear what our precedent already required”). 24 1 minutes at a time, although she admitted that she cleaned house, 2 cooked, drove, and took care of her boyfriend (who then was 75 years 3 old and an amputee) (A.R. 40-42, 51-52, 55). 4 claimed that she spent most of her days seated or in bed, with regular 5 breaks to get up and walk around and shift positions (A.R. 42). 6 Further, Plaintiff said that her doctors had told her to elevate her 7 legs all the time to reduce swelling (A.R. 43). 8 had pain every day of at least a five on a scale of 1-10, she 9 regularly took Gabapentin and Meloxicam, and she tried to limit her Yet, Plaintiff also Plaintiff claimed she 10 Norco because it supposedly made her sleep and inhibited her 11 functioning (A.R. 43-44).13 12 13 Plaintiff had undergone two surgeries on her left hand for a 14 ganglion cyst (A.R. 44-45). Plaintiff said she does not have the 15 strength in her left hand that she once had and that her hand contorts 16 and spasms (A.R. 45-46). 17 at home, but claimed she cannot use it on a constant basis (id.). 18 Plaintiff testified that she likes to play dominos, watch television, 19 read, use her phone, go to church weekly, and take care of her pit 20 bull (which she no longer walks), and that she had just resumed doing Plaintiff admitted that she uses a computer 21 22 23 24 25 26 27 28 13 In an Exertion Questionnaire dated June 8, 2015, Plaintiff reported that she had pain in her lower back which supposedly radiated down her legs, causing cramping and muscle spasms (A.R. 206). She reported that she did normal day-to-day activities such as washing dishes and driving, which she alleged caused her to have pain (id.). Plaintiff reported that she did not walk much due to pain, she could climb stairs (15 steps), and could lift less than ten pounds and a bag of groceries once a week, sweep, mop, wash dishes in 15 minute intervals, garden, and drive a car for up to 15 miles (A.R. 206-08). Plaintiff reportedly was using a knee brace for her left knee approximately one-third of the time (A.R. 208). 25 1 aquatic therapy (A.R. 53-57). 2 3 The ALJ found Plaintiff’s statements concerning the intensity, 4 persistence and limiting effect of her symptoms not entirely 5 consistent with the medical evidence and other evidence in the record. 6 See A.R. 23-25 (finding no evidence establishing that Plaintiff’s 7 impairments are so severe as to prevent Plaintiff from working). 8 ALJ cited: (1) Plaintiff’s relatively conservative treatment with pain 9 medication and epidural injections with noted “excellent results” and The 10 improvement with no motor deficits; (2) no evidence that Plaintiff’s 11 left ganglion cysts, which had been removed with surgery, caused 12 greater limitations than Dr. Tamayo found to exist; (3) Plaintiff’s 13 knees had been treated conservatively with physical therapy and 14 injections, with reports of full range of motion and motor strength; 15 and (4) Plaintiff’s activities of daily living which showed she was 16 able to perform a wide range of activities of daily living, 17 discrediting her allegations of functional limitations (A.R. 24-26). 18 19 Regarding reason (4) above, the ALJ reasonably could determine 20 that Plaintiff’s admitted daily activities of taking care of her 21 boyfriend, performing household chores, cooking, driving, and 22 shopping, going to church weekly and caring for her dog suggest that 23 Plaintiff’s functional limits are not as profound as Plaintiff claims. 24 See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) 25 (inconsistency between claimed incapacity and admitted activities 26 properly can impugn a claimant’s credibility); Burch v. Barnhart, 400 27 F.3d 676, 680-812 (9th Cir. 2005) (daily activities can constitute 28 “clear and convincing reasons” for discounting a claimant’s 26 1 testimony); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 2 (claimant’s testimony regarding daily domestic activities undermined 3 the credibility of her pain-related testimony); Morgan v. 4 Commissioner, 169 F.3d 595, 600 (9th Cir. 1999) (evidence of 5 claimant’s ability to “fix meals, do laundry, work in the yard and 6 occasionally care for his friend’s child serve as evidence of [the 7 claimant’s] ability to work”). 8 9 Regarding the portions of reasons (1) through (3) above which 10 concern the objective medical evidence, an ALJ permissibly may rely in 11 part on a lack of supporting objective medical evidence in discounting 12 a claimant’s allegations of disabling symptomology. 13 Barnhart, 400 F.3d at 681 (“Although lack of medical evidence cannot 14 form the sole basis for discounting pain testimony, it is a factor the 15 ALJ can consider in his [or her] credibility analysis.”); Rollins v. 16 Massanari, 261 F.3d at 857 (same); see also Carmickle v. Commissioner, 17 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical 18 record is a sufficient basis for rejecting the claimant’s subjective 19 testimony”); Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007), cert. 20 denied, 552 U.S. 1141 (2008) (subjective knee pain properly discounted 21 where laboratory tests showed knee function within normal limits); SSR 22 16–3p (“[O]bjective medical evidence is a useful indicator to help 23 make reasonable conclusions about the intensity and persistence of 24 symptoms, including the effects those symptoms may have on the ability 25 to perform work-related activities . . .”). 26 between subjective symptom complaints and objective medical evidence 27 cannot be the sole basis for discounting a claimant’s complaints, 28 Burch v. Barnhart, 400 F.3d at 681, the ALJ did not discount 27 See Burch v. Although inconsistencies 1 Plaintiff’s complaints solely on the basis that the complaints were 2 inconsistent with the objective medical evidence. 3 4 The ALJ’s citing of Plaintiff’s assertively “conservative” 5 treatment in portions of reasons (1) and (3) above is perhaps less 6 persuasive. 7 rejection of a claimant’s testimony, at least where the testimony 8 concerns physical problems. 9 1035, 1040 (9th Cir. 2008); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th A limited course of treatment sometimes can justify the See, e.g., Tommasetti v. Astrue, 533 F.3d 10 Cir. 1999). In the present case, however, it is highly doubtful 11 Plaintiff’s treatment with narcotic pain medications, epidural 12 injections and hand surgery accurately may be characterized as 13 “conservative” within the meaning of Ninth Circuit jurisprudence (even 14 though Plaintiff’s doctors sometimes used the term “conservative” to 15 reference Plaintiff’s treatment, see A.R. 433, 445). 16 Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16, 17 2014) (“[i]t is not obvious whether the consistent use of [Norco] (for 18 several years) is ‘conservative’ or in conflict with Plaintiff’s pain 19 testimony”); Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. 20 July 18, 2014) (“It would be difficult to fault Plaintiff for overly 21 conservative treatment when he has been prescribed strong narcotic 22 pain medications”); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. 23 Cal. Sept. 16, 2011) (refusing to characterize as “conservative” 24 treatment including use of narcotic pain medication and epidural 25 injections). See, e.g., 26 27 28 The arguable invalidity of the ALJ’s characterization of Plaintiff’s treatment as “conservative” does not undermine the ALJ’s 28 1 conclusion that Plaintiff’s subjective statements and testimony were 2 less than fully credible. 3 reasons for discounting a claimant’s credibility may have been 4 invalid, a court nevertheless will uphold the ALJ’s credibility 5 determination where, as here, sufficient valid reasons remain. 6 Carmickle v. Commissioner, 533 F.3d at 1162-63. 7 the ALJ stated sufficient valid reasons to allow this Court to 8 conclude that the ALJ discounted Plaintiff’s credibility on 9 permissible grounds. Where one or more of an ALJ’s stated See In the present case, See Moisa v. Barnhart, 367 F.3d at 885. The 10 Court therefore defers to the ALJ’s credibility determination. See 11 Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will 12 defer to Administration’s credibility determination when the proper 13 process is used and proper reasons for the decision are provided); 14 accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 15 1464 (9th Cir. 1995).14 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 25 26 27 28 14 The Court need not and does not determine whether Plaintiff’s subjective complaints are credible. Some evidence suggests that those complaints may be credible. However, it is for the Administration, and not this Court, to evaluate the credibility of witnesses. See Magallanes v. Bowen, 881 F.2d 747, 750, 755-56 (9th Cir. 1989). 29 CONCLUSION 1 2 3 For all of the foregoing reasons,15 Plaintiff’s motion for 4 summary judgment is denied and Defendant’s motion for summary judgment 5 is granted. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 DATED: May 3, 2019. 9 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 15 25 26 27 28 The Court has considered and rejected each of Plaintiff’s arguments. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 30
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