Fernando Soto Vasquez v. Michael J Astrue

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. Consequently, the Court finds that either under the "specific and legitimate reasons" test or the "clear and convincing reasons" test, the ALJ satisfied his oblig ation to properly determine the credibility of Plaintiff's subjective complaints, and the Court will therefore deny Plaintiff's relief as requested in his third issue. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 1 [SEE ORDER FOR FURTHER DETAILS] (gr)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 FERNANDO SOTO VASQUEZ, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-02841-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 (“JS”), and the Commissioner has filed the certified Administrative 26 Record (“AR”). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge’s (“ALJ”) residual 1 functional capacity assessment is supported by substantial 2 evidence; 3 2. 4 5 the ALJ’s literacy finding is supported by substantial evidence; and 3. 6 7 Whether Whether the ALJ’s credibility determination is supported by substantial evidence. (JS at 4.) 8 9 This Memorandum Opinion will constitute the Court’s findings of 10 fact and conclusions of law. After reviewing the matter, the Court 11 concludes that the decision of the Commissioner must be affirmed. 12 13 I 14 THE ALJ’S RESIDUAL FUNCTIONAL CAPACITY (“RFC”) ASSESSMENT 15 IS SUPPORTED BY SUBSTANTIAL EVIDENCE 16 17 In Plaintiff’s first issue, he asserts that the ALJ erred in determining his RFC. 18 Plaintiff’s RFC is determined in the ALJ’s Decision (AR 19-28) as 19 follows: the capacity to perform medium work as defined in the 20 regulations, including the ability to stand and walk up to six hours 21 and sit up to six hours in an eight-hour workday with normal breaks. 22 Plaintiff is precluded from climbing ladders, ropes or scaffolds, and 23 can occasionally climb ramps or stairs, and frequently stoop, kneel, 24 crouch and crawl. 25 environmental irritants or poorly ventilated areas, and he is limited 26 in his ability to communicate in English. (AR 22.) Plaintiff is restricted from work involving 27 The underlying medical evidence includes a Medical Evaluation: 28 Respiratory Impairment three-page form dated March 3, 2010, prepared 2 1 by Dr. 2 physician. 3 consultative internal medicine evaluation (“CE”) performed June 17, 4 2008 by Dr. Tamayo, a board-eligible internist, at the request of the 5 Department of Social Services. (AR 280-284.) 6 internal medicine CE performed April 8, 2010 at the request of the 7 Department of Social Services by Dr. Klein. (AR 391-397.) 8 9 Foraste, (AR a board-certified 386-388.) In internal addition, the medicine ALJ treating relied upon a Also relied upon was an The ALJ devoted substantial discussion to the report of Dr. Foraste but determined to accord “little weight” to his opinion. noted that Dr. Foraste “set forth very extreme It 10 was functional 11 limitations that have inadequate, if any, justification.” (AR at 24.) 12 As examples, the ALJ rejected Dr. Foraste’s conclusion that Plaintiff 13 can stand continuously for only 20 minutes, sit continuously for a 14 half-hour, lift five pounds and carry two pounds, and requires the use 15 of supplemental oxygen 24 hours per day. (Id.) 16 pulmonary function test was referenced by Dr. Foraste, but it is not 17 known when the test was administered, and no documentary report is 18 included. 19 which 20 [Plaintiff’s] subjective allegations of continued abdominal pain from 21 June 2007 through January 2008.” (Id.) 22 Foraste “appears to have routinely considered [Plaintiff] disabled.” 23 (Id.) 24 completely inconsistent with all objective evidence of record, ...” 25 (AR 24-25.) The ALJ noted that a Further, the ALJ reviewed Dr. Foraste’s treatment notes showed little Finally, the more ALJ than found “brief that documentation of the The ALJ determined that Dr. Dr. Foraste’s opinion “is 26 The Court notes that if the ALJ had rejected Dr. Foraste’s 27 opinion because of a generic comment that it was inconsistent with the 28 remainder of the objective medical evidence, it would have found that 3 1 the ALJ’s decision was not supported by substantial evidence. That is 2 not the case here. 3 the relevant medical evidence, and set it forth in his Decision. 4 an 5 requires 24-hour use of supplemental oxygen, the ALJ compared this to 6 a March 16, 2009 report (actually, a letter to Dr. Foraste) from Dr. 7 Arroyo, which provided no objective support for the use of oxygen. (AR 8 24, 369-371.) 9 example, in In fact, the ALJ undertook a substantial review of evaluating Dr. Foraste’s opinion that As Plaintiff The ALJ also relied upon an October 2009 report of cardiologist 10 Dr. Rao. 11 experience shortness of breath and occasional palpitations, with the 12 need to use home oxygen around the clock, an echocardiogram from 13 November 2009 indicated normal systolic function. (AR 24, 380.) 14 Despite Plaintiff’s complaints to this doctor that he The ALJ noted a pulmonary stress test from March 10, 2009 which, 15 despite Plaintiff’s complaints of shortness of breath 16 during ambulation, indicated no respiratory distress. (AR 24, 368.) 17 With regard to the ALJ’s notation that Dr. Foraste’s opinion 18 would be evaluated with lesser credibility because some of the 19 underlying test results were either not present or could not be 20 confirmed (AR 24), Plaintiff disagrees, noting there is a spirometry 21 report (AR 375), and a chest x-ray (AR 366). (JS at 5.) 22 does not make any argument as to how these documents might be 23 supportive of his position, and the Court’s review indicates that they 24 do not appear to be corroborative of Dr. Foraste’s conclusions. 25 spirometry report (AR 375) appears to be unremarkable, and the x-ray 26 report (AR 366) does not, similarly, appear to corroborate Dr. 27 Foraste’s 28 limitations. rather extreme evaluation 4 of But Plaintiff Plaintiff’s The exertional 1 Plaintiff appears to be suggesting that there is some 2 arbitrariness in the ALJ’s determination of his RFC. The record, 3 however, indicates that the ALJ discounted CE Dr. Klein’s April 2010 4 exertional limitations, based on x-rays which would belie Plaintiff’s 5 ostensible inability to perform at a greater than light level of 6 exertional capacity. (AR 25.) 7 Tamayo’s conclusion which supported no functional limitations. (AR 8 25.) 9 Tamayo’s conclusion of no limitations, and Dr. Klein’s view that The ALJ gave greater weight to Dr. But in the end, the ALJ took a middle position, between Dr. 10 Plaintiff was limited to light exertional work. 11 conclude 12 substantial evidence. that this conclusion was reached in The Court cannot the absence of 13 14 II 15 THE ALJ’S LITERACY FINDING IS SUPPORTED BY SUBSTANTIAL EVIDENCE 16 In Plaintiff’s second issue, he contends that the ALJ’s Finding 17 No. 8, that Plaintiff has a “marginal education and is able to 18 communicate in English” (AR 26) is incomplete, because he asserts that 19 he is illiterate in English. 20 the RFC for light work, and is considered illiterate, a finding of 21 disabled would be warranted. (JS at 15, citing 20 C.F.R. Part 404, 22 subpt. P, App. 2, Rule 202.09.) 23 Plaintiff contends that if he retains Plaintiff’s second issue must be rejected because the ALJ found 24 that Plaintiff is capable of a medium range of exertional work. As 25 such, Plaintiff would not be found disabled under the Medical- 26 Vocational Guidelines (“Grids”). 27 discussion of the first issue raised by Plaintiff that the ALJ’s 28 conclusion that Plaintiff is capable of medium exertional work is The Court has determined in its 5 1 supported by substantial evidence. Consequently, Plaintiff’s second 2 argument must fail because it is grounded on the assumption that 3 Plaintiff is only capable of light exertional work. 4 5 III 6 THE ALJ PROPERLY DEPRECIATED PLAINTIFF’S CREDIBILITY 7 In his Decision, the ALJ determined that although Plaintiff’s 8 medically determinable impairments could reasonably be expected to 9 cause the alleged symptoms, his statements concerning the intensity, 10 persistence and limiting effects of these symptoms were not credible 11 to the extent they are inconsistent with the RFC assessment. (AR 23.) 12 Plaintiff claims this is error. 13 that, despite articulating six reasons which relate to lack of support 14 for Plaintiff’s credibility, five of them all pertain to lack of 15 supportive objective findings. 16 legal proposition that an ALJ cannot reject a claimant’s testimony 17 based solely on alleged lack of objective evidence which corroborates 18 it. (JS at 18-19, citing Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 19 2004); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). 20 Court, however, does not agree that the reasons cited by the ALJ may 21 fairly 22 complaints and objective medical evidence. 23 be characterized as Indeed, Plaintiff’s assertion is Plaintiff quite properly notes the a contradiction between The subjective As to the first reason, the lack of objective evidence, Plaintiff 24 agrees, and the 25 contradiction, 26 credibility 27 Plaintiff does not appear to dispute the factors supporting the 28 discrepancy if law is exists, analysis, between supports although subjective the may it be may proposition considered not complaints 6 be and as the that part sole objective such of a the basis. medical 1 evidence, cited by the Commissioner (see JS at 21), but rather, relies 2 upon an argument that this factor cannot be considered in and of 3 itself. 4 medical evidence cited by the ALJ and contained in the record. Consequently, the Court need not again review the objective 5 The Commissioner also notes that the ALJ observed that after his 6 surgery, Plaintiff had an unremarkable recovery and his sleep apnea 7 was controlled with a CPAP machine. 8 for a disabling condition may be considered by the ALJ. 9 §§ 404.1529(c)(3)(iv), (v), 416.929(c)(iv), (v). The effectiveness of treatment See 20 C.F.R. The evidence in the 10 record does indicate that Plaintiff was doing well after his surgery, 11 as reflected in Dr. Eldrich’s notes of February 2007. (AR 238.) 12 following month, Dr. Eldrich indicated there was no reason for 13 Plaintiff to be off work. (AR 236.) Plaintiff admitted at the hearing 14 before the ALJ that the CPAP machine helped his sleep apnea “a lot.” 15 (AR 42.) The This was confirmed by a December 2008 sleep study. (AR 356.) 16 While Plaintiff argues that there is no finding of malingering, 17 the ALJ did note Dr. Klein’s conclusion that Plaintiff was a “poor 18 historian.” (AR 25, 391.) 19 evaluation. 20 similar conclusion in the “physical examination” portion of his 21 report. (AR 369.) This observation is part of a credibility As the Commissioner notes, Dr. Arroyo also reached a 22 Plaintiff also provided poor effort during his examination with 23 Dr. Klein, in particular with regard to the grip strength test. (AR 24 25, 393.) 25 upon in the credibility evaluation. This conclusion, which the ALJ noted, was properly relied 26 Finally, the fact that Plaintiff had looked for work as recently 27 as 25 days before the hearing was noted by the ALJ, and is, again, a 28 proper credibility determinative technique. (AR 25, 39.) 7 1 Consequently, the Court finds that either under the “specific and 2 legitimate reasons” test or the “clear and convincing reasons” test, 3 the ALJ satisfied his obligation to properly determine the credibility 4 of Plaintiff’s subjective complaints, and the Court will therefore 5 deny Plaintiff’s relief as requested in his third issue. 6 7 8 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 9 10 11 DATED: January 11, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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