Martinez v. Astrue, No. 5:2011cv05006 - Document 22 (N.D. Cal. 2013)

Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT by Judge Paul S. Grewal, denying 17 Motion for Summary Judgment. Signed by Judge Paul S. Grewal on 2/25/2013. (ofr, COURT STAFF) (Filed on 2/25/2013)
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Martinez v. Astrue Doc. 22 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 14 15 16 17 18 19 20 21 SANTIAGO MARTINEZ, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, Commissioner of Social ) Security ) ) Defendant. ) ) Case No.: C 11-5006 PSG ORDER DENYING PLAINTIFF SANTIAGO MARTINEZ’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT MICHAEL J. ASTRUE’S MOTION FOR SUMMARY JUDGMENT (Re: Docket Nos. 17, 19, 20) Plaintiff Santiago Martinez (“Martinez”) filed this action on March 2, 2012 pursuant to 42 U.S.C § 405(g), appealing the decision by the Commissioner of Social Security 22 (“Commissioner”) denying him Social Security insurance benefits. Martinez now moves for 23 24 summary judgment. The Commissioner opposes the motion and cross-moves for summary 25 judgment. The matter was submitted without oral argument pursuant to Civ. L.R. 16-5. Having 26 reviewed the papers and considered the arguments presented therein, the court DENIES Martinez’s 27 28 1 Case No.: 11-5006 PSG ORDER Dockets.Justia.com 1 2 motion for summary judgment and GRANTS the Commissioner’s cross-motion for summary judgment. I. 3 4 5 6 7 8 BACKGROUND The following facts are taken from the February 10, 2010 decision by the Administrative Law Judge (“ALJ”) and the accompanying administrative record (“AR”). Martinez was born June 7, 1951, 1 and has a high school education. 2 He worked for a construction remodeling company from September 2005 until August 2006. 3 In 2004, Martinez filed an application for Supplemental Security Income (“SSI”) benefits 4 9 United States District Court For the Northern District of California 10 alleging disability since February 2001, which ultimately was denied. 5 On September 8, 2006, 11 Martinez filed a new application for SSI benefits, again alleging disability since February 2001. 6 12 The agency denied Martinez’s September 2006 application initially and on reconsideration. 7 13 Martinez requested a hearing which an ALJ convened on October 3, 2008. 8 In a decision dated 14 February 24, 2009, the ALJ determined that Martinez was not disabled. 9 15 Martinez appealed the ALJ’s decision and the Appeals Council (“AC”) remanded the case 16 17 with four instructions: (1) to evaluate Martinez’s subjective complaints pursuant to 1 See AR at 25. 19 2 See id. 20 3 See id. at 183, 315. 21 4 18 22 Title XVI of the Social Security Act provides for payment of SSI benefits to qualifying individuals. Unlike Title II Social Security Disability Insurance, in determining SSI benefits, there is no need to determine a claimant’s last insured date. 23 5 See id. at 17. 24 6 See id. at 168-74. 7 See id at 99-103, 107-11. 8 See id. at 33. 9 See id. at 94. 25 26 27 28 2 Case No.: 11-5006 PSG ORDER 1 20 C.F.R. § 416.929; (2) to evaluate the other opinions on the record in accordance with 2 20 C.F.R. § 416.913(d); (3) to give further consideration to Martinez’s maximum residual 3 functional capacity (“RFC”); 10 and (4) to obtain vocational expert (“VE”) testimony to clarify the 4 effect of Martinez’s assessed limitations on the availability of a job. 11 The ALJ convened a second 5 hearing on November 12, 2009, at which Martinez and a VE testified. 12 On February 10, 2010, the 6 7 8 9 United States District Court For the Northern District of California 10 ALJ issued his second decision, finding Martinez not disabled since September 8, 2006, which is the date he applied for SSI benefits. 13 On August 12, 2011, the AC denied further review, making the ALJ’s decision the final determination. 14 A. The AR contains medical records dating back to 2005, 15 but records supporting Martinez’s 11 12 13 14 Medical Evidence claims originate in 2006. In 2006 and 2007, Martinez saw a number of doctors for a host of complaints, including asthma, chest pain, back pain, foot pain, knee pain, hip pain, groin pain, and numbness in his feet. 16 15 On November 30, 2006, Dr. Clark Gable (“Gable”), an independently retained Social 16 17 Security Administration (“SSA”) program consultant, examined Martinez. 17 Based on the physical 18 examination, Gable concluded that Martinez had low back pain, possibly due to osteoarthritis. 19 10 20 A claimant’s RFC is what he or she can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 21 11 See AR at 97. 22 12 See id. at 50-81. 23 13 See id. at 18-26. 24 14 See id. at 1. 15 See id. at 272. The only evidence from 2005 is a blood test showing high cholesterol. See id. 16 See id. at 264-301, 320-44. 17 See id. at 302. 25 26 27 28 3 Case No.: 11-5006 PSG ORDER 1 Gable acknowledged Martinez’s complaints of hip pain but noted that the range of motion in 2 Martinez’s hips appeared normal and that he could walk normally. 18 Gable opined that Martinez 3 could sit for up to 6 hours a day with frequent breaks and could lift 25 pounds frequently and 50 4 pounds occasionally. 19 5 6 In December 2006, SSA consultant Dr. W.G. Jackson (“Jackson”) examined Martinez’s records. 20 Based on the objective medical evidence in Martinez’s record, Jackson concluded that 7 8 9 Martinez’s asthma was under control through the use of inhalers and that his back pain was likely due to arthritis. 21 On January 11, 2007, x-rays showed calcium in both of Martinez’s lower extremities. 22 On United States District Court For the Northern District of California 10 11 February 21, 2007, an MRI of the right knee showed mild joint effusion and synovitis associated 12 with degeneration of the meniscus. 23 On March 1, 2007, Dr. Constance Lo (“Lo”), Martinez’s 13 14 treating physician, characterized Martinez’s knee condition as chronic right knee pain involving degeneration of the meniscus without a tear. 24 15 On December 26, 2007 an MRI of the lumbar (“’07 lumbar MRI”) showed multilevel 16 17 broad-based disc bulge and facet hypertrophy, mild to moderate neural foraminal stenosis, and 18 19 20 21 18 See id. 22 19 See id. 23 20 See id. at 315-17. 24 21 See id. at 317. 22 See id. at 325-26. 23 See id. at 318-19. 24 See id. at 331. 25 26 27 28 4 Case No.: 11-5006 PSG ORDER 1 2 some decreased disc height. 25 Upon physical examination, Lo reported normal appearance and function with the exception of some decreased sensation and vibration in the left leg. 26 Conservative treatment with exercise, physical therapy, and pain medication appears to 3 4 have provided relief of Martinez’s impairments and pain. 27 On December 6, 2007, for example, Lo 5 noted that physical therapy seemed to improve Martinez’s back pain. 28 Martinez also showed 6 improved range of motion, decreased pain, and improved balance and walking ability. 29 7 In March 2008, Martinez reported no left knee pain, 30 and by April 2008, Martinez reported 8 9 United States District Court For the Northern District of California 10 the ability to sit for 30 minutes, to stand for 20-30 minutes and to walk for 8 blocks. 31 On August 18, 2008, his physical therapist reported 90% normal left knee flexion. 32 11 On October 10, 2008, after continued complaints of left knee pain, Dr. Steven Yoshioka 12 (“Yoshioka”) ordered x-rays and an MRI of Martinez’s left knee. 33 Yoshioka’s physical evaluation 13 of Martinez did not show any deterioration in his condition. 34 The x-rays taken that same day 14 showed slight degenerative change, calcification and a large effusion in Martinez’s left knee. 35 15 16 17 25 See id. at 356. 18 26 See id. at 333. 27 See id. at 277, 279, 283, 285, 289, 291, 334, 336, 339-41, and 358. 28 See id. at 358-60. 29 See id. at 360-69. 30 See id. at 363-64. 31 See id. at 361. 32 See id. at 365. 33 See id. at 457-58. 27 34 See id. at 422. 28 35 See id. at 421-22. 19 20 21 22 23 24 25 26 5 Case No.: 11-5006 PSG ORDER 1 2 The MRI of Martinez’s left knee, taken on October 16, 2008 (“the ‘08 MRI”), showed deterioration that the radiologist characterized as a “tear of the meniscus.” 36 In May 2009, Martinez reported worsening of lower extremity pain to his physical 3 4 therapist, 37 but examination of the left knee showed normal walking ability and no significant 5 abnormalities. 38 6 7 8 9 United States District Court For the Northern District of California 10 In November 2009, Martinez complained of numbness in his legs and Lo ordered a nerve conduction test comprised of ENG and EMG tests. 39 The ENG test showed “possible peripheral polyneuropathy in the lower extremities secondary to prior alcohol use” and the EMG test showed “completely normal findings in the left lower extremity which is the more symptomatic side.” 40 11 On December 8, 2009, Lo filled out a physical RFC questionnaire. 41 In the questionnaire, 12 Lo noted that the ’08 MRI showed a complex tear of the left knee meniscus. Lo did not respond to 13 14 any questions related to Martinez’s functional limitations and instead wrote “unable to assess” next to all of the limitation questions. 42 15 16 B. At the second hearing the VE testified that in light of Martinez’s limitations, he could only 17 18 Vocational Expert Testimony perform one-third to one-half of the 442,507 nationally available jobs in the medium work 19 20 36 See id. at 456. 21 37 See, e.g., id. at 435, 437. 22 38 See id. at 435, 448. 23 39 See id. at 483. 24 40 See id. 25 41 See id. at 489–93. 26 27 28 42 Id. Lo submitted a letter explaining that she could not opine on Martinez’s physical limitations since such an “evaluation is not done by any of the physicians in our department, as we are not qualified to do this type of extensive and detailed functional evaluation.” Id. at 354. 6 Case No.: 11-5006 PSG ORDER 1 category. 43 As examples of medium category jobs Martinez could perform, the VE testified that 2 Martinez could perform jobs as a driver’s helper or a meat clerk and that there were 74,000 and 3 113,000 nationally available jobs, respectively. The VE also testified that there were 170 local 4 driver’s helper positions and 613 local meat clerk jobs available. 44 5 C. 6 7 8 ALJ’s 2010 Findings At the first step of the traditional five-step disability analysis, the ALJ found Martinez had not engaged in substantial gainful activity since his application date of September 8, 2006. 45 At step two, the ALJ found that Martinez had severe impairments consisting of 9 United States District Court For the Northern District of California 10 degenerative disease of the spine, slight degeneration of the left knee meniscus, and asthma 11 because those impairments “more than minimally affect the claimant’s basic work activities.” 46 12 The ALJ concluded that Martinez’s allegations of impairments and pain other than that associated 13 14 with degenerative disease of the spine, slight degeneration of the knee meniscus, and asthma “[we]re not supported by the record.” 47 15 At step three, the ALJ found Martinez’s impairments did not meet or medically equal any 16 17 of the qualifying impairments. 48 The ALJ based his opinion on the fact that “the medical evidence 18 does not reflect the severity of condition . . . nor the functional incapacity anticipated under the 19 listings.” 49 Moreover, “the record does not show that [Martinez] cannot ambulate or perform fine 20 21 43 See id. at 73-81. 22 44 See id. at 77-8. 23 45 See id. at 19. 24 46 Id. at 22. 47 Id. at 20. 48 See id. at 22. 49 Id. 25 26 27 28 7 Case No.: 11-5006 PSG ORDER 1 or gross movements.” 50 The ALJ noted that “with these conditions involving the claimant’s spine 2 and lower extremities . . . the record shows physical examinations which are normal in appearance 3 and function with the exception of some decreased sensation and vibration of the left extremity 4 noted by the treating physician.” 51 5 6 7 8 9 At step four, the ALJ determined that Martinez had the RFC to perform medium work “except he is able to occasionally perform stooping and climbing and must avoid moderate exposure to fumes, gases, dust, and poor ventilation.” 52 In arriving at this RFC determination, the ALJ summarized the various opinions regarding Martinez’s limitations and explained that he United States District Court For the Northern District of California 10 “mainly relied upon the opinions of the program consultants in deciding the RFC because they are 11 consistent with and supported by the record.” 53 The ALJ did not rely upon Lo’s opinion as to 12 Martinez’s limitations since “[Lo] did not present any such limitations.” 54 13 The ALJ additionally found Martinez’s testimony regarding the “intensity, persistence, and 14 limiting effects of [his] symptoms [] not credible to the extent they [we]re inconsistent with” his 15 16 17 RFC determination. 55 The ALJ noted that the record is “bereft of any reference whatsoever to the claimant not being able walk (sic) with the [alleged] limitations.” 56 “The record reflects a different 18 19 20 21 50 Id. 22 51 Id. at 20. 23 52 Id. at 23. 24 53 See id. at 24 54 See id. 55 See id. at 23. 56 Id. at 24. 25 26 27 28 8 Case No.: 11-5006 PSG ORDER 1 2 situation than is presented by [Martinez] . . . and raises an issue concerning his reliability in reporting the effects of his condition on his activities.” 57 At step five, the ALJ determined that based on the RFC finding and the testimony of the 3 4 VE, Martinez was “capable of making a successful adjustment to other work that exists in 5 significant numbers in the national economy.” 58 The ALJ thus concluded that Martinez was not 6 disabled “since September 8, 2006, the date the application was filed” and issued his decision. 59 7 II. 8 9 A. Standard for Reviewing the Commissioner’s Decision Pursuant to 42 U.S.C. § 405(g), this court has the authority to review the Commissioner’s 10 United States District Court For the Northern District of California LEGAL STANDARDS 11 decision denying Martinez benefits. The Commissioner’s decision (here the underlying decision of 12 the ALJ) will be disturbed only if it is not supported by substantial evidence or if it is based upon 13 the application of improper legal standards. 60 In this context, the term “substantial evidence” 14 means “more than a scintilla but less than a preponderance – it is such relevant evidence a 15 16 reasonable mind might accept as adequate to support the conclusion.” 61 When determining 17 whether substantial evidence exists to support the administrative record as a whole, the court must 18 consider adverse as well as supporting evidence. 62 Where evidence exists to support more than one 19 rational interpretation, the court must defer to the decision of the ALJ. 63 “If additional proceedings 20 57 Id. 58 See id. at 26. 23 59 See id. at 14-26. 24 60 21 22 25 See Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 61 See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1257. 62 See Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). 63 See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258. 26 27 28 9 Case No.: 11-5006 PSG ORDER 1 can remedy defects in the original administrative proceedings, a social security case should be 2 remanded.” 64 3 B. 4 5 6 Standard for Determining Disability Disability claims are evaluated using a five-step, sequential evaluation process. In the first step, the Commissioner must determine whether the claimant currently is engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. 65 If the claimant is not 7 8 9 currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a “severe” impairment or combination of impairments that United States District Court For the Northern District of California 10 significantly limits the claimant’s ability to do basic work activities; if not, a finding of “not 11 disabled” is made and the claim is denied. 66 If the claimant has a “severe” impairment or 12 combination of impairments, the third step requires the Commissioner to determine whether the 13 14 impairment or combination of impairments meets or equals an impairment in the Listing; if so, disability is presumed and benefits are awarded. 67 If the claimant’s impairment or combination of 15 16 impairments does not meet or equal an impairment in the Listing, the fourth step requires the 17 Commissioner to determine claimant’s RFC and whether claimant’s RFC is sufficient to perform 18 his or her past work; if so, the claimant is not disabled and the claim is denied. 68 The plaintiff has 19 the burden of proving that he or she is unable to perform past relevant work. 69 If the claimant 20 meets this burden, a prima facie case of disability is established. The Commissioner then bears the 21 22 64 Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). 23 65 See id. 24 66 See id. 67 See id. 68 See Drouin, 966 F.2d at 1257; Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). 69 See id. 25 26 27 28 10 Case No.: 11-5006 PSG ORDER 1 2 burden of establishing that the claimant can perform other substantial gainful work; 70 the determination of this issue comprises the fifth and final step in the sequential analysis. III. 3 4 5 6 DISCUSSION Martinez argues that the ALJ erred in finding him not disabled for three reasons: (1) the ALJ failed to properly evaluate the medical evidence in the record; (2) the ALJ failed to include all of Martinez’s impairments in the RFC analysis; and (3) the ALJ’s vocational findings are not 7 8 supported by substantial evidence. The Commissioner responds that: (1) substantial evidence supports the ALJ’s determination 9 United States District Court For the Northern District of California 10 that Martinez was not disabled; (2) the ALJ properly evaluated all of Martinez’s medically 11 determinable impairments in his RFC determination; and (3) the ALJ properly relied on VE 12 testimony regarding vocational findings. 13 A. Evaluation of the Medical Evidence 14 1. Torn Meniscus 15 Martinez argues that the ALJ’s RFC findings are not supported by substantial evidence 16 17 because the ALJ’s statement that “the record as discussed above does not reflect MRI findings 18 which show a meniscus tear” conflicts with the 2008 MRI showing a “[c]omplex tear of the medial 19 meniscus involving the body and posterior horn.” 71 The Commissioner notes that despite any 20 error, the ALJ’s RFC determination is supported by substantial evidence because Martinez was 21 22 able to work prior to the MRI and his medical records after the MRI show improvement and minimal knee pain. 72 23 24 25 26 27 28 70 There are two ways for the Commissioner to meet the burden of showing that there is work in significant numbers in the national economy that claimant can perform: (1) by the testimony of a vocational expert; or (2) by reference to the Medical-Vocational Guidelines. See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). 71 See Docket No. 17 at 4. 72 See Docket No. 19 at 5-6. 11 Case No.: 11-5006 PSG ORDER In determining a claimant’s RFC, the ALJ must consider all symptoms and the extent to 1 2 which they can reasonably be accepted as consistent with all the evidence. 73 If the ALJ’s RFC 3 determination is supported by substantial evidence, his decision must be upheld. 74 4 5 6 7 8 9 To the extent that Martinez argues that the ALJ made a mistake, the court agrees. The ALJ cites Exhibit 14F 75 in support of his statement that the 2008 MRI “results showed ‘slight’ degenerative change, vascular calcification, and a large effusion.” While page one of Exhibit 14F is from the body of the MRI report, page two of the exhibit shows the results of the 2008 x-rays. 76 Exhibit 14F does not include the results of the 2008 MRI report. 77 To the extent that Martinez argues that due to this error, the ALJ’s RFC findings are not United States District Court For the Northern District of California 10 11 supported by substantial evidence, Martinez’s argument fails. The ALJ made an express 12 determination that Martinez was not credible with respect to his reports of knee pain. 78 The ALJ 13 14 noted that Martinez reported no left knee pain in March 2008 and, in August 2008, left knee flexion was 90% normal. 79 October 2008 is the first and only time that any medical evidence 15 16 indicates a torn meniscus. The ALJ additionally considered evidence from 2009 – after the 2008 17 18 19 73 20 See 20 C.F.R. § 416.929; see also SSR 96-4p, 1996 WL 374187 (Jul. 2, 1996); id. at 96-7p, 1996 WL 374186 (Jul. 2, 1996). 21 74 See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1257. 22 75 See AR at 20. 23 76 24 25 See id. at 421-22. It appears that this error was not the ALJ’s fault – he considered the exhibits in the order they were presented to him. It appears that whoever compiled the records combined the body of the 2008 x-ray report with the findings of the 2008 MRI. 77 See AR at 20. 78 See id. at 23. 79 See id. at 21 (citing Exhibit 15F at 5, 8, 11). 26 27 28 12 Case No.: 11-5006 PSG ORDER 1 2 MRI – which shows that Martinez’s left knee had improved, with “no significant abnormalities as well as a normal gait and stability.” 80 3 Although there is some evidence indicating Martinez suffered from a torn meniscus, 4 substantial evidence supports the ALJ’s findings that Martinez nevertheless had the RFC to 5 6 perform medium work during the time between the filing of his SSI application in September 2006 81 and when the ALJ issued his second determination in February 2010. The court must defer 7 8 to an ALJ’s determination that is supported by substantial evidence. 2. 9 Martinez argues that the ALJ erred by rejecting Lo’s opinion as reported in the RFC United States District Court For the Northern District of California 10 11 questionnaire dated December 8, 2009 82 because she was his treating physician. 12 13 14 Dr. Lo’s Medical Opinion An ALJ is not required to give controlling weight to a treating physician’s opinion unless it is well-supported and consistent with other substantial evidence in the record. 83 An ALJ must “give good reasons” for the weight given to a treating physician’s opinion,” 84 but “may disregard 15 16 17 80 18 See id. 81 19 20 21 22 23 24 25 Even though Martinez alleges disability since 2001, the ALJ properly used the September 2006 application date to begin the disability analysis. First, Martinez was gainfully employed from September 2005 through August 2006 and was therefore not disabled within the meaning of the SSA. Furthermore, “under Title XVI, there is no retroactivity of payment. [SSI] payments are prorated for the first month for which eligibility is established after application. . .” SSR 83-20, 1983 WL 31249 (1983). Because the ALJ determined that Martinez was not disabled at any time between September 2006 and February 2010, there is no requirement that the ALJ determine an onset date. See id. (“[t]he only time a specific date of onset must be determined for SSI claims is when the onset is subsequent to the date of filing.”). See AR at 489-93. 83 20 C.F.R. § 416.927(d)(2); see also Halohan v. Massinari, 246 F.3d 1195, 1202 (9th Cir. 2001). 84 26 82 20 C.F.R. § 405.1572. 27 28 13 Case No.: 11-5006 PSG ORDER 1 the treating physician’s opinion whether or not that opinion is contradicted.” 85 “For example, an 2 ALJ need not accept a treating physician's opinion which is brief and conclusionary in form with 3 little in the way of clinical findings to support [their] conclusion.” 86 As long as the ALJ gave 4 specific and legitimate reasons supported by substantial evidence for rejecting the treating 5 physician’s opinion, there is no error. 87 6 As a preliminary matter, although Martinez identifies Lo as his “treating physician,” it is 7 8 9 not all together clear that she is accurately labeled as such. Treating physicians are “employed to cure” and “have a greater opportunity to know and observe the patient as an individual.” 88 It United States District Court For the Northern District of California 10 appears from the record that Lo rarely saw Martinez and served primarily as a reference point for 11 his visits and clinical exams. 89 12 13 Be that as it may, even if Lo is properly identified as the treating physician, the ALJ gave specific reasons for discounting her opinions. As Martinez points out, the ALJ rejected Lo’s 14 opinion because: “(1) she does not show clinical findings which reflect significant dysfunction; (2) 15 16 17 85 Magallenas v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 86 Id. (internal citations omitted). 18 87 22 See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). In his opposition, the Commissioner states that the 9th Circuit requires the ALJ to provide “‘clear and convincing’ reasons to reject the [uncontradicted] opinion of a treating physician.”). Docket No. 19 (citing Lester, 81 F.3d at 83031). Because Lo’s opinion is contradicted by the opinions of Clark and Gable, the “clear and convincing reasons” standard does not apply. See Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). Nonetheless, the court finds that the reasons the ALJ cites for rejecting Lo’s opinion are clear and convincing. 23 88 24 89 19 20 21 25 26 27 28 Id. According to his papers, Martinez received medical care under the Santa Clara Valley Health system for indigent care, see Docket No. 17 at 4, and “Lo’s opinion was based on access to all Mr. Martinez (sic) medical records”. See Docket No. 20 at 2. Although Lo is listed as Martinez’s primary care physician throughout the medical record, Martinez was often seen by doctors other than Lo. See, e.g., AR at 422 (Martinez seen by Dr. Prameela Madamala); id. at 436 (Dr. Elizabeth Desmond); id. at 457-58 (Dr. Steven Yoshioka); id. at 394 (Dr. Ben Wong); id. at 285 (Dr. Thomas Kelsey). 14 Case No.: 11-5006 PSG ORDER 1 2 the record does not reflect MRI findings showing a torn meniscus; and (3) she does not assess limitations.” 90 3 In the 2009 RFC questionnaire, the only clinical findings reported by Lo consist of 4 verbatim copying of the findings from the 2007 spinal MRI, the 2008 left knee MRI, and the nerve 5 conduction tests. 91 Lo did not supplement the clinical findings with any findings of her own. 6 7 8 9 As Martinez concedes, Lo did not respond to any questions related to Martinez’s functional limitations 92 which comprise more than three pages of the five page questionnaire: Instead, Lo wrote “unable to assess” next to all of the limitation questions. 93 United States District Court For the Northern District of California 10 In sum, Lo’s opinions are not supported by the record and in fact do not support Martinez’s 11 claim. Lo never made a substantive finding of disability; she merely collated and recited verbatim 12 the medical evidence provided to her, and she never opined as to Martinez’s limitations or his 13 ability to work. 14 As Martinez concedes, the ALJ gave specific reasons for discounting Lo’s opinion and the 15 16 court finds that these reasons are clear and convincing and supported by substantial evidence. B. RFC Determination 17 18 i. 19 Martinez argues that the ALJ erred by not including neuropathy in assessing his RFC 20 Medically Determinable Impairments because Lo included “possible peripheral neuropathy” in her diagnosis. 94 21 22 90 Docket No. 19 at 6. 23 91 See AR at 489; cf. id. at 422, 456, and 485. 24 92 Docket No. 17 at 7. 25 93 26 27 28 See AR at 489–93. Lo submitted a letter explaining that she could not opine on Martinez’s physical limitations since such an “evaluation is not done by any of the physicians in our department, as we are not qualified to do this type of extensive and detailed functional evaluation.” Id. at 354. Thus, even if Lo had opined on Martinez’s limitations, the opinion would not be entitled to great weight to the extent that Lo is not qualified to make such assessments. 15 Case No.: 11-5006 PSG ORDER When assessing RFC, the ALJ must consider all “medically determinable impairments” 95 1 2 of which the SSA is aware, regardless of the severity. 96 “[T]he existence of a medically 3 determinable physical or mental impairment cannot be established in the absence of objective 4 medical abnormalities, i.e., medical signs and laboratory findings.” 97 A medical opinion offered in 5 support of an impairment must include “symptoms [and a] diagnosis.” 98 “[U]nder no 6 7 8 circumstances may the existence of an impairment be established on the basis of [reports of] symptoms alone.” 99 The ALJ properly included all of Martinez’s medically determinable impairments. Lo did 9 United States District Court For the Northern District of California 10 not in fact medically determine that Martinez suffered from neuropathy; she merely parroted the 11 inconclusive results of the 2009 nerve conduction tests which showed that Martinez might suffer 12 from neuropathy. 100 In fact the EMG component of the nerve test performed on Martinez’s left 13 leg, the more symptomatic side, was completely normal. 101 Although there are several reports by 14 15 16 94 Docket No. 17 at 7. 95 20 C.F.R. § 416.945(a)(2). 17 18 96 21 In his reply brief, the Commissioner argues that the ALJ did not have to consider neuropathy in the RFC analysis since it was not a severe disability. But 20 C.F.R. § 416.923 provides that all “medically determinable disabilities” – regardless of severity – must be considered when determining whether a claimant’s combination of claimed disabilities result in severe impairments; see also Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). 22 97 19 20 23 24 25 26 27 Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (citing SSR 96-4p, 1996 WL 374187 (Jul. 2, 1996)). 98 Id. (citing SSR 96-6p, 1996 WL 374180 (July 2, 1996)) (emphasis in original). 99 Id. 100 Martinez takes issue with the ALJ’s characterization of the EMG results as “inclusive,” which appears to be a typo. The ALJ’s determination regardless is supported by substantial evidence. 101 28 Id. 16 Case No.: 11-5006 PSG ORDER 1 2 Martinez of numbness throughout the five years of medical records in the AR, Martinez provides neither medically determinable symptoms nor a diagnosis of his alleged neuropathy. 3 With no objective findings of neuropathy and no diagnosis of neuropathy, the ALJ did not 4 err by failing to include the condition in his analysis because neuropathy is not one of Martinez’s 5 6 medically determinable impairments. Therefore, the ALJ’s determination is supported by substantial evidence. 7 8 C. The ALJ’s Vocational Findings Martinez argues that the ALJ improperly relied on VE testimony in determining that there 9 United States District Court For the Northern District of California 10 were significant numbers of jobs in the economy that he could perform. According to Martinez, 11 the VE testified that Martinez could only perform the jobs of meat clerk and driver’s helper with 12 613 and 170 available jobs, respectively, in the region, and that of these 783 jobs, he could only 13 perform 266 (i.e., roughly one-third) due to his additional limitations. Martinez essentially argues 14 that 266 locally available jobs do not constitute “significant numbers” for the purposes of 15 16 20 C.F.R. § 404.1566. Whether significant numbers of jobs exist is a question of fact to be determined by the 17 18 ALJ. 102 VE testimony is an appropriate method for the ALJ to meet the burden of showing that 19 there is work in significant numbers in the national economy that a claimant can perform. 103 20 “Work exists in the national economy when it exists in significant numbers either in the region 21 where [the claimant] live[s] or in several other regions of the country.” 104 The calculation “can be 22 either regional jobs (the region where a claimant resides) or in several regions of the country 23 24 25 26 27 28 102 See Beltran v. Astrue, 700 F.3d 386, 393 (9th Cir. 2012). 103 See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). 104 Beltran, 700 F.3d at 390; see also 20 C.F.R. §§ 404.1566(a), (b). 17 Case No.: 11-5006 PSG ORDER 1 2 (national jobs).” 105 If the court finds either of the two numbers significant, the court must uphold the ALJ’s determination. 106 3 Contrary to Martinez’s argument, the VE did not testify that Martinez could only perform 4 the jobs of meat clerk or driver’s helper, nor that 266 of these jobs were available regionally. The 5 6 VE testified that in light of Martinez’s limitations, he could perform roughly one-third to one-half of all jobs in the medium work category. 107 As examples of medium category jobs Martinez could 7 8 9 United States District Court For the Northern District of California 10 perform despite his limitations, the VE gave specific examples of driver’s helper and meat clerk with 170 and 613 locally available jobs, respectively. Thus, the VE testified that there were at least 783 regional jobs that Martinez could perform. As the Ninth Circuit instructs, 108 district courts are to look at the number of both regionally 11 12 13 14 available and nationally available jobs. According to the VE testimony, there were 442,507 nationally available jobs in the medium work category, of which Martinez could perform one-half to one-third (i.e., 147,502 to 221,254). 109 The VE’s testimony that there were between 147,000 15 16 and 221,000 nationally available jobs and at least 783 locally available jobs provide substantial 17 evidence supporting the ALJ’s determination that there were a significant number of jobs that 18 Martinez could perform in the national economy. 110 These numbers of jobs are within the range of 19 “significant” for purposes of 20 C.F.R. § 404.1566. 20 21 105 Beltran, 700 F.3d at 389 (internal citations omitted) (emphasis in original). 106 See id. 107 See AR at 73-81. 108 See Beltran, 700 F.3d 386. 109 See AR at 73-81. 22 23 24 25 26 27 28 110 See, e.g., Moncada, 60 F.3d 521 (2,300 regional and 64,000 national jobs); Barker v. Sec'y of Health & Human Services, 882 F.2d 1474, 1479 (9th Cir. 1989) (1,266 regional jobs) (relying on Uravitch v. Heckler, No. CIV–84–1619–PHX–PGR, 1986 WL 83443, at *1 (D. Ariz. May 2, 1986) 18 Case No.: 11-5006 PSG ORDER III. 1 2 CONCLUSION Martinez’s motion for summary judgment is DENIED and the Commissioner’s cross- 3 motion for summary judgment is GRANTED. The clerk shall close the file. 4 IT IS SO ORDERED. 5 6 Dated: February 25, 2013 _________________________________ PAUL S. GREWAL United States Magistrate Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (50-67% of 500 regional jobs, i.e., 250 to 333); cf. Beltran, 700 F.3d 386 (135 regional and 1,680 national jobs did not constitute substantial evidence of significant numbers). The court does not reach the question of whether 783 regional jobs alone provide substantial evidence of “significant numbers” of available jobs. 19 Case No.: 11-5006 PSG ORDER
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