Susan Wold v. Nancy A. Berryhill, No. 8:2019cv01124 - Document 24 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. (es)
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Susan Wold v. Nancy A. Berryhill Doc. 24 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 SUSAN WOLD, 12 13 Plaintiff, v. 14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) Case No. SACV 19-01124-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 17 PROCEEDINGS 18 19 20 21 22 23 24 25 26 27 28 On June 5, 2019, Susan W old (“Plaintiff” or “Claimant”) filed a complaint seeking review of the decision by the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s applications for Social Security Disability Insurance benefits and for Supplemental Security Income benefits. (Dkt. 1.) The Commissioner filed an Answer on September 19, 2019. (Dkt. 15.) On March 18, 2020, the parties filed a Joint Stipulation (“JS”). (Dkt. 23.) The matter is now ready for decision. Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed bef ore this Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record (“AR”), the Court concludes that the Commissioner’s decision must be affirmed and this case dismissed with prejudice. Dockets.Justia.com 1 BACKGROUND 2 Plaintiff is a 54 year-old female who applied for Social Security Disability Insurance 3 benefits on June 11, 2015, and Supplemental Security Income benefits on June 19, 2015, 4 alleging disability beginning May 1, 2014. (AR 11.) The ALJ determined that Plaintiff has not 5 engaged in substantial gainful activity since May 1, 2014, the alleged onset date. (AR 14.) 6 Plaintiff’s claims were denied initially on September 21, 2015, and on reconsideration on 7 December 15, 2015. (AR 11.) Plaintiff filed a timely request for hearing, which was held before 8 Administrative Law Judge (“ALJ”) Alan J. Markiewicz on December 14, 2017, in Orange, 9 California. (AR 11.) Plaintiff appeared and testified at the hearing and was represented by 10 counsel. (AR 11.) Vocational expert (“VE”) Joseph H. Torres also appeared and testified at 11 the hearing. (AR 11.) 12 The ALJ issued an unfavorable decision on February 27, 2018. (AR 11-20.) The 13 Appeals Council denied review on April 9, 2019. (AR 1-4.) 14 DISPUTED ISSUES 15 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 16 grounds for reversal and remand: 17 1. testimony. 18 19 2. 22 23 24 Whether the final decision has the support of substantial evidence on the sitting required of telemarketers or the standing/walking required of cashiers. 20 21 Whether the ALJ gave proper consideration to Plaintiff’s symptom and limitation 3. Whether substantial evidence supports the classification of telephone solicitor as past relevant work. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 25 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 26 Chater, 80 F.3d 1273 , 1279 (9th Cir. 1996); see also DeLorm e v. Sullivan, 924 F.2d 841, 846 27 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 28 based on the proper legal standards). 2 1 Substantial evidence means “‘more than a mere scintilla,’ but less than a 2 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 3 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 5 401 (internal quotation marks and citation omitted). 6 This Court must review the record as a whole and consider adverse as well as 7 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). W here 8 evidence is susceptible to more than one rational interpretation, the ALJ’s decision m ust be 9 upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 10 “However, a reviewing court must consider the entire record as a whole and may not affirm 11 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 12 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v . Astrue, 495 13 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 14 15 The Social Security Act defines disability as the “inability to engage in any substantial 16 gainful activity by reason of any medically determinable physical or mental impairment which 17 can be expected to result in death or . . . can be expected to last for a continuous period of not 18 less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 19 established a five-step sequential process to determine whether a claimant is disabled. 20 20 C.F.R. §§ 404.1520, 416.920. 21 The first step is to determine whether the claimant is presently engaging in substantial 22 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 23 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 24 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 25 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 26 significantly limit the claimant’s ability to work. Smolen, 80 F.3d at 1290. Third, the ALJ must 27 determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. 28 Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d at 746. If the impairment 3 1 meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 2 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the 3 claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 4 2001). Before making the step four determination, the ALJ first must determine the claimant’s 5 residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is “the most [one] can 6 still do despite [his or her] limitations” and represents an assessment “based on all the relevant 7 evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). T he RFC must consider all of the 8 claimant’s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 9 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 10 If the claimant cannot perform his or her past relevant work or has no past relevant work, 11 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 12 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 13 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 14 consistent with the general rule that at all times the burden is on the claimant to establish his or 15 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 16 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 17 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). T o support 18 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 19 demonstrating that other work exists in significant numbers in the national economy that the 20 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 21 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 22 entitled to benefits. Id. 23 24 THE ALJ DECISION In this case, the ALJ determined at step one of the sequential process that Plaintiff has 25 not engaged in substantial gainful activity since May 1, 2014, the alleged onset date. (AR 14.) 26 At step two, the ALJ determined that Plaintiff has the following medically determinable 27 severe impairments: osteoarthritis; history of internal derangement of the meniscus of the right 28 4 1 knee; degenerative disc disease of the lumbar spine; and series of foot deformities, including 2 status/post surgery malunion of the first metatarsal head. (AR 14.) 3 At step three, the ALJ determined that Plaintiff does not have an impairment or 4 combination of impairments that meets or medically equals the severity of one of the listed 5 impairments. (AR 14.) 6 The ALJ then found that Plaintiff has the RFC to perform light work as defined in 20 CFR 7 §§ 404.1567(b) and 416.967(b) with the following limitations: 8 Claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. 9 She can stand and walk for 4 hours in an 8-hour workday; can sit for 6 hours in 10 an 8-hour workday, but cannot climb ladders, ropes, or scaffolds. She can 11 occasionally climb ramps and stairs and frequently balance. She can 12 occasionally stoop, kneel, crouch and crawl. 13 (AR 14-18.) In determining the above RFC, the ALJ made a determination that Plaintiff’s 14 subjective symptom allegations were “not entirely consistent” with the medical evidence and 15 other evidence of record. (AR 15.) 16 At step four, the ALJ found that Plaintiff is able to perform her past relevant work as a 17 telephone solicitor. (AR 18-19.) The ALJ also found at step five that, considering Claimant’s 18 age, education, work experience and RFC, there are jobs that exist in significant numbers in 19 the national economy that Claimant can perform, including the job of cashier movie theater. 20 (AR 19-20.) 21 Consequently, the ALJ found that Claimant is not disabled within the meaning of the 22 Social Security Act. (AR 20.) 23 24 DISCUSSION The ALJ decision must be affirmed. The ALJ properly discounted Plaintiff’s subjective 25 symptom allegations. The ALJ’s RFC is supported by substantial evidence. The ALJ’s 26 determination that Plaintiff could perform her past relevant work or alternative jobs in the 27 national economy is supported by substantial evidence. 28 5 1 I. THE ALJ’S RFC IS SUPPORTED BY SUBSTANTIAL EVIDENCE 2 Plaintiff contends that the ALJ erred in discounting Plaintiff’s subjective symptom 3 allegations. The Court disagrees. 4 A. Relevant Federal Law 5 The ALJ’s RFC is not a medical determination but an administrative finding or legal 6 decision reserved to the Commissioner based on consideration of all the relevant evidence, 7 including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 8 C.F.R. § 1527(e). In determining a claimant’s RFC, an ALJ must consider all relevant evidence 9 in the record, including medical records, lay evidence, and the effects of symptoms, including 10 pain reasonably attributable to the medical condition. Robbins, 446 F.3d at 883. 11 The test for deciding whether to accept a claimant’s subjective symptom testimony turns 12 on whether the claimant produces medical evidence of an impairment that reasonably could be 13 expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 14 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Sm olen, 80 15 F.3d at 1281-82 esp. n.2. The Commissioner may not discredit a claimant’s testimony on the 16 severity of symptoms merely because they are unsupported by objective medical evidence. 17 Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant’s pain 18 testimony not credible, the ALJ “must specifically make findings which support this conclusion.” 19 Bunnell, 947 F.2d at 345. The ALJ must set forth “findings sufficiently specific to permit the 20 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. 21 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); see also Rollins v . Massanari, 261 F.3d 853, 857 22 (9th Cir. 2001); Bunnell, 947 F.2d at 345-46. Unless there is ev idence of malingering, the ALJ 23 can reject the claimant’s testimony about the severity of a claimant’s symptoms only by offering 24 “specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d at 1283-84; see also 25 Reddick, 157 F.3d at 722. The ALJ must identify what testimony is not credible and what 26 evidence discredits the testimony. Reddick, 157 F.3d at 722; Smolen, 80 F.3d at 1284. 27 28 6 1 B. Analysis 2 Plaintiff claims she is unable to work due to bunions and musculosketal issues. (AR 15.) 3 She alleges that she is unable to stand for long periods because of pain and swelling in her 4 right ankle, leg, and foot. (AR 15.) The ALJ did find that Plaintiff had the medically 5 determinable severe impairments of osteoarthritis, derangement of right knee meniscus, 6 degenerative disc disease of the lumbar spine, and foot deformities. (AR 14.) Notwithstanding 7 these impairments, the ALJ assessed Plaintiff with a reduced range of light work RFC. (AR 148 15.) The ALJ also determined that Plaintiff could perform her past relevant work as a 9 telephone solicitor (AR 18) and a full range of other alternative sedentary jobs in the national 10 economy (AR 19, 20). Consequently, the ALJ concluded that Plaintiff was not disabled from 11 the alleged onset date of May 1, 2014, through the date of decision on February 27, 2018. (AR 12 20.) 13 In determining Plaintiff’s RFC, the ALJ concluded that Plaintiff’s medically determinable 14 impairments reasonably could be expected to cause the alleged symptoms. (AR 15.) The ALJ, 15 however, also found that Plaintiff’s statements regarding the intensity, persistence, and limiting 16 effects of these symptoms were “not entirely consistent” with the medical evidence and other 17 evidence of record. (AR 15.) Because the ALJ did not make any finding of malingering, he 18 was required to provide clear and convincing reasons supported by substantial evidence for 19 discounting Plaintiff’s subjective symptom allegations. Smolen, 80 F.3d at 1283-84; 20 Tommasetti v. Astrue, 533 F.3d at 1035, 1039-40 (9th Cir. 2 008). The ALJ did so. 21 First, the ALJ found that Plaintiff’s subjective allegations were inconsistent with the 22 objective medical evidence. (AR 15-16, 17, 18.) An ALJ is permitted to consider whether there 23 is a lack of medical evidence to corroborate a claimant’s alleged symptoms so long as it is not 24 the only reason for discounting a claimant’s credibility. Burch v. Barnhart, 400 F.3d 676, 68025 81 (9th Cir. 2005). Plaintiff had bunionectomies on both feet but appeared to heal “without any 26 problems.” (AR 16.) She healed well and had no complaints per several medical visits. (AR 27 17.) There is little evidence of treatment of her foot impairments in 2016 and 2017. (AR 16, 28 17.) With respect to Plaintiff’s knees, there was only mild medial joint space narrowing and no 7 1 evidence of joint instability. (AR 17.) With respect to her spine, MRIs showed only mild 2 degenerative changes and some advanced degenerative disc disease. (AR 17.) The ALJ 3 gave weight to the opinion of the State agency reviewing physician that Plaintiff can perform 4 light work. (AR 15.) The ALJ found this opinion consistent with the “generally minimal 5 objective findings.” (AR 16.) Plaintiff does not present any medical opinions challenging the 6 ALJ’s RFC, nor any meaningful argument that the objective medical evidence does not support 7 the ALJ’s RFC. Second, the ALJ found that Plaintiff’s minimal or conservative treatment was 8 9 inconsistent with Plaintiff’s alleged symptoms. (AR 17, 18.) Conservative treatment is a valid 10 basis for discounting a claimant’s subjective symptom allegations. Tommasetti, 533 F.3d at 11 1039-40. The Commissioner notes that Plaintiff chose epidural injections over surgery. (AR 12 18.) Injections, however, are not considered conservative treatment. See Arthur C. v. Saul, 13 2019 WL 5420445, at *4 (C.D. Cal. Oct. 23, 2019) (collecting cases); Garrison v. Colvin, 759 14 F.3d 995, 1015 n.20 (9th Cir. 2014) (“[W ]e doubt that epidural steroid shots to the neck and 15 lower back qualify as ‘conservative’ medical treatment”). Here, however, there were but two 16 injections in April and June 2016. (AR 18, 474, 477.) T hese two close in time injections do not 17 alter the fact that Plaintiff’s overall treatment on the whole was conservative. Cuellar v. Saul, 18 2020 WL 1234187, at *5 (C.D. Cal. Mar. 13, 2020). Third, the ALJ found that Plaintiff did not always follow treatment recommendations. 19 20 (AR 18.) An ALJ may consider an unexplained or inadequately explained failure to seek 21 treatment or follow a treatment regimen in evaluating subjective symptoms. Tommasetti, 533 22 F.3d at 1039. Here, the ALJ noted that Plaintif f delayed X-rays and was not using the Richie 23 brace as required for treatment of her right ankle. (AR 16, 18, 394.) She came back for a 1 24 treatment visit in two weeks rather than one week as she was supposed to do. (AR 16, 18.) 25 1 26 27 28 The ALJ also found that Plaintiff was inconsistent in reporting on smoking and vaping. The issue is fairly minor and insufficient to establish that Plaintiff’s subjective symptoms regarding her medical impairments were not credible. The ALJ implicitly agrees. (JS 14.) Nonetheless, the error is harmless because the ALJ provided other valid reasons for discounting Plaintiff’s subjective symptom allegations. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162-63 8 Plaintiff disagrees with the ALJ’s evaluation of the evidence, but it is the ALJ’s 1 2 responsibility to resolve conflicts in the medical evidence and ambiguities in the record. 3 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). W here the ALJ’s interpretation of the 4 record is reasonable, as it is here, it should not be second-g uessed. Rollins, 261 F.3d at 857; 5 Thomas, 278 F.3d at 954 (“Where the evidence is susceptible to more than rational 6 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion m ust be 7 upheld.”). The ALJ discounted Plaintiff’s subjective symptom allegations for clear and convincing 8 9 reasons supported by substantial evidence. The ALJ’s RFC is supported by substantial 10 evidence. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 II. PLAINTIFF IS CAPABLE OF PERFORMING PAST RELEVANT WORK OR ALTERNATIVE JOBS IN THE NATIONAL ECONOMY The ALJ assessed Plaintiff with a reduced range of light work RFC. (AR 14.) She can stand and walk for 4 hours in an 8 hour workday and sit for 6 hours. (AR 14.) With the above RFC, the ALJ determined at step four of the sequential process that Plaintiff can perform her past relevant work as a telephone solicitor (DOT 299.357-014), which is sedentary skilled work. (AR 18.) The ALJ also found that there are other jobs in the national econom y she can perform. (AR 19.) Thus, at step five of the sequential process the ALJ found that Plaintiff could perform the job of cashier movie theater (DOT 211.462-010), which is light semi-skilled work. (AR 20.) Plaintiff challenges whether the telephone solicitor job can be perf ormed within the ALJ’s RFC. Based on online vocational data, Plaintiff contends that the job requires sitting continually, more than the six hours the ALJ’s RFC permits. The Court rejects this argument, which is contradicted by Social Security rulings, Social Security regulations, the Dictionary of Occupational Titles (“DOT”), Ninth Circuit rulings, and the VE’s assessment. Social Security Ruling 83-10*5 provides that for sedentary jobs sitting should generally total 6 hours of an 8 hour workday with periods of standing and walking no more than 2 hours. SSR 83-10 is 27 28 (9th Cir. 2008). 9 1 consistent with Social Security regulations, which also provide that “[j]obs are sedentary if 2 walking and standing are required only occasionally and other sedentary criteria are met.” 20 3 C.F.R. § 404.1567(a). The regulations further provide that terms such as “sedentary” have the 4 same meaning as they have in the DOT. 20 C.F.R. § 404.1567. The DOT states that 5 sedentary jobs involve sitting most of the time and that jobs are sedentary if walking and 6 standing are required only “occasionally” (up to 1/3 of the time for an 8 hour day). DOT, App. 7 C, 1991 WL 688702 (Jan. 1, 2016). 8 The Ninth Circuit has confirmed these requirements. Aukland v. Massanari, 257 F.3d 9 1033, 1035 (9th Cir. 2001) (sitting should generally total approximately 6 hours of an 8 hour 10 workday). The telephone solicitor job fits within the above parameters. DOT 299.357-014. 11 Despite Plaintiff’s contention that the telephone solicitor job m ay require more than six hours 12 sitting, the DOT code for the job contains the same requirements as above, i.e., that walking 13 and standing are required only occasionally, which would leave 6 hours for sitting. Plaintiff also 14 does not consider breaks, other duties, and the f act that telephone solicitation calls could be 15 made standing rather than sitting. 16 The VE, moreover, testified that Plaintiff can perform the job as generally performed per 17 the DOT within the RFC, including the limitation to six hours sitting. (AR 60.) Plaintiff does not 18 identify any conflict between the VE’s testimony and the DOT. The VE is not required to 19 address conflicts with vocational data other than the DOT. The VE’s recognized expertise 20 provides the necessary foundation for his or her testimony and “no additional foundation is 21 necessary”. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). T he ALJ’s determination 22 that Plaintiff can perform her past relevant work as a telephone solicitor as that job is generally 23 performed is supported by substantial evidence. Plaintiff failed to meet her burden to 24 demonstrate she cannot perform her past relevant work as a telephone solicitor. 25 Based on the testimony of the VE (AR 60-61), the ALJ also found at step five of the 26 sequential evaluation that Plaintiff could perform the job of cashier movie theater (DOT 27 211.426-010). (AR 20.) Because the ALJ’s RFC imposes a four hour limit on standing and 28 walking, the VE eroded the job numbers by 90%, which still left 32,000 jobs nationally. See 10 1 Gutierrez v. Colvin, 740 F.3d 519, 527-29 (9th Cir. 2014) (25,000 jobs nationally is a significant 2 number). Plaintiff contends that the Bureau of Labor Statistics’ data shows that cashiers stand 3 and walk more than 4 hours, but the VE took that into consideration w hen eroding the job 4 category by 90%. 5 Plaintiff, moreover, never addresses the ALJ’s step five determination that she can do “a 6 generally full range of unskilled sedentary jobs.” (AR 20.) As an example, the VE testified that 7 Plaintiff would be able to perform the sedentary, unskilled job of lens installer (DOT 713.6878 026). (AR 61.) This occupation is available nationally at the rate of 105,000 jobs. (AR 61.) 9 This alone is a significant number of jobs. Plaintiff makes no challenge to the VE’s testimony 10 as to this occupation. Therefore, any error in the VE’s testimony regarding the telephone 11 solicitor or cashier occupations would be harmless. Carmickle, 533 F.3d at 1162-63. 12 Accordingly, the ALJ’s step five finding that there are significant jobs in the national 13 economy that Plaintiff can perform (AR 19-20) is supported by substantial evidence. *** 14 15 The ALJ’s nondisability determination is supported by substantial evidence and free of 16 legal error. 17 ORDER 18 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 19 Commissioner of Social Security and dismissing this case with prejudice. 20 21 DATED: June 22, 2020 22 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 11
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