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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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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FERNANDO SOTO VASQUEZ,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,

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Defendant.

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No. CV 12-02841-VBK
MEMORANDUM OPINION
AND ORDER
(Social Security Case)

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This matter is before the Court for review of the decision by the

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Commissioner of Social Security denying Plaintiff’s application for

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disability benefits.

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consented that the case may be handled by the Magistrate Judge.

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action arises under 42 U.S.C. §405(g), which authorizes the Court to

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enter judgment upon the pleadings and transcript of the record before

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the Commissioner.

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(“JS”), and the Commissioner has filed the certified Administrative

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Record (“AR”).

Pursuant to 28 U.S.C. §636(c), the parties have
The

The parties have filed the Joint Stipulation

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Plaintiff raises the following issues:

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1.

Whether the Administrative Law Judge’s (“ALJ”) residual

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functional capacity assessment is supported by substantial

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evidence;

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2.

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the

ALJ’s

literacy

finding

is

supported

by

substantial evidence; and
3.

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Whether

Whether the ALJ’s credibility determination is supported by
substantial evidence.

(JS at 4.)

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This Memorandum Opinion will constitute the Court’s findings of

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fact and conclusions of law.

After reviewing the matter, the Court

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concludes that the decision of the Commissioner must be affirmed.

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I

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THE ALJ’S RESIDUAL FUNCTIONAL CAPACITY (“RFC”) ASSESSMENT

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IS SUPPORTED BY SUBSTANTIAL EVIDENCE

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In Plaintiff’s first issue, he asserts that the ALJ erred in
determining his RFC.

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Plaintiff’s RFC is determined in the ALJ’s Decision (AR 19-28) as

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follows: the capacity to perform medium work as defined in the

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regulations, including the ability to stand and walk up to six hours

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and sit up to six hours in an eight-hour workday with normal breaks.

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Plaintiff is precluded from climbing ladders, ropes or scaffolds, and

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can occasionally climb ramps or stairs, and frequently stoop, kneel,

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crouch and crawl.

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environmental irritants or poorly ventilated areas, and he is limited

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in his ability to communicate in English. (AR 22.)

Plaintiff is restricted from work involving

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The underlying medical evidence includes a Medical Evaluation:

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Respiratory Impairment three-page form dated March 3, 2010, prepared
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by

Dr.

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physician.

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consultative internal medicine evaluation (“CE”) performed June 17,

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2008 by Dr. Tamayo, a board-eligible internist, at the request of the

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Department of Social Services. (AR 280-284.)

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internal medicine CE performed April 8, 2010 at the request of the

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Department of Social Services by Dr. Klein. (AR 391-397.)

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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

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was

functional

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limitations that have inadequate, if any, justification.” (AR at 24.)

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As examples, the ALJ rejected Dr. Foraste’s conclusion that Plaintiff

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can stand continuously for only 20 minutes, sit continuously for a

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half-hour, lift five pounds and carry two pounds, and requires the use

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of supplemental oxygen 24 hours per day. (Id.)

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pulmonary function test was referenced by Dr. Foraste, but it is not

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known when the test was administered, and no documentary report is

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included.

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which

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[Plaintiff’s] subjective allegations of continued abdominal pain from

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June 2007 through January 2008.” (Id.)

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Foraste “appears to have routinely considered [Plaintiff] disabled.”

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(Id.)

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completely inconsistent with all objective evidence of record, ...”

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(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

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The Court notes that if the ALJ had rejected Dr. Foraste’s

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opinion because of a generic comment that it was inconsistent with the

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remainder of the objective medical evidence, it would have found that
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the ALJ’s decision was not supported by substantial evidence. That is

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not the case here.

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the relevant medical evidence, and set it forth in his Decision.

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an

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requires 24-hour use of supplemental oxygen, the ALJ compared this to

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a March 16, 2009 report (actually, a letter to Dr. Foraste) from Dr.

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Arroyo, which provided no objective support for the use of oxygen. (AR

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24, 369-371.)

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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

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Dr. Rao.

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experience shortness of breath and occasional palpitations, with the

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need to use home oxygen around the clock, an echocardiogram from

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November 2009 indicated normal systolic function. (AR 24, 380.)

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Despite Plaintiff’s complaints to this doctor that he

The ALJ noted a pulmonary stress test from March 10, 2009 which,

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despite

Plaintiff’s

complaints

of

shortness

of

breath

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during

ambulation, indicated no respiratory distress. (AR 24, 368.)

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With regard to the ALJ’s notation that Dr. Foraste’s opinion

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would be evaluated with lesser credibility because some of the

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underlying test results were either not present or could not be

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confirmed (AR 24), Plaintiff disagrees, noting there is a spirometry

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report (AR 375), and a chest x-ray (AR 366). (JS at 5.)

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does not make any argument as to how these documents might be

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supportive of his position, and the Court’s review indicates that they

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do not appear to be corroborative of Dr. Foraste’s conclusions.

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spirometry report (AR 375) appears to be unremarkable, and the x-ray

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report (AR 366) does not, similarly, appear to corroborate Dr.

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Foraste’s

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limitations.

rather

extreme

evaluation

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of

But Plaintiff

Plaintiff’s

The

exertional

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Plaintiff

appears

to

be

suggesting

that

there

is

some

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arbitrariness in the ALJ’s determination of his RFC.

The record,

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however, indicates that the ALJ discounted CE Dr. Klein’s April 2010

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exertional limitations, based on x-rays which would belie Plaintiff’s

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ostensible inability to perform at a greater than light level of

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exertional capacity. (AR 25.)

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Tamayo’s conclusion which supported no functional limitations. (AR

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25.)

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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.

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Plaintiff was limited to light exertional work.

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conclude

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substantial evidence.

that

this

conclusion

was

reached

in

The Court cannot
the

absence

of

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II

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THE ALJ’S LITERACY FINDING IS SUPPORTED BY SUBSTANTIAL EVIDENCE

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In Plaintiff’s second issue, he contends that the ALJ’s Finding

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No. 8, that Plaintiff has a “marginal education and is able to

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communicate in English” (AR 26) is incomplete, because he asserts that

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he is illiterate in English.

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the RFC for light work, and is considered illiterate, a finding of

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disabled would be warranted. (JS at 15, citing 20 C.F.R. Part 404,

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subpt. P, App. 2, Rule 202.09.)

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Plaintiff contends that if he retains

Plaintiff’s second issue must be rejected because the ALJ found

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that Plaintiff is capable of a medium range of exertional work.

As

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such, Plaintiff would not be found disabled under the Medical-

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Vocational Guidelines (“Grids”).

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discussion of the first issue raised by Plaintiff that the ALJ’s

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conclusion that Plaintiff is capable of medium exertional work is

The Court has determined in its

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supported by substantial evidence.

Consequently, Plaintiff’s second

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argument must fail because it is grounded on the assumption that

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Plaintiff is only capable of light exertional work.

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III

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THE ALJ PROPERLY DEPRECIATED PLAINTIFF’S CREDIBILITY

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In his Decision, the ALJ determined that although Plaintiff’s

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medically determinable impairments could reasonably be expected to

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cause the alleged symptoms, his statements concerning the intensity,

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persistence and limiting effects of these symptoms were not credible

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to the extent they are inconsistent with the RFC assessment. (AR 23.)

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Plaintiff claims this is error.

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that, despite articulating six reasons which relate to lack of support

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for Plaintiff’s credibility, five of them all pertain to lack of

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supportive objective findings.

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legal proposition that an ALJ cannot reject a claimant’s testimony

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based solely on alleged lack of objective evidence which corroborates

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it. (JS at 18-19, citing Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir.

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2004); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986).

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Court, however, does not agree that the reasons cited by the ALJ may

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fairly

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complaints and objective medical evidence.

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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

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agrees,

and

the

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contradiction,

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credibility

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Plaintiff does not appear to dispute the factors supporting the

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discrepancy

if

law
is

exists,

analysis,

between

supports

although

subjective

the

may
it

be
may

proposition
considered
not

complaints
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be

and

as

the

that
part
sole

objective

such
of

a
the

basis.

medical

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evidence, cited by the Commissioner (see JS at 21), but rather, relies

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upon an argument that this factor cannot be considered in and of

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itself.

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medical evidence cited by the ALJ and contained in the record.

Consequently, the Court need not again review the objective

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The Commissioner also notes that the ALJ observed that after his

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surgery, Plaintiff had an unremarkable recovery and his sleep apnea

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was controlled with a CPAP machine.

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for a disabling condition may be considered by the ALJ.

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§§ 404.1529(c)(3)(iv), (v), 416.929(c)(iv), (v).

The effectiveness of treatment
See 20 C.F.R.

The evidence in the

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record does indicate that Plaintiff was doing well after his surgery,

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as reflected in Dr. Eldrich’s notes of February 2007. (AR 238.)

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following month, Dr. Eldrich indicated there was no reason for

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Plaintiff to be off work. (AR 236.) Plaintiff admitted at the hearing

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before the ALJ that the CPAP machine helped his sleep apnea “a lot.”

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(AR 42.)

The

This was confirmed by a December 2008 sleep study. (AR 356.)

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While Plaintiff argues that there is no finding of malingering,

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the ALJ did note Dr. Klein’s conclusion that Plaintiff was a “poor

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historian.” (AR 25, 391.)

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evaluation.

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similar conclusion in the “physical examination” portion of his

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report. (AR 369.)

This observation is part of a credibility

As the Commissioner notes, Dr. Arroyo also reached a

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Plaintiff also provided poor effort during his examination with

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Dr. Klein, in particular with regard to the grip strength test. (AR

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25, 393.)

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upon in the credibility evaluation.

This conclusion, which the ALJ noted, was properly relied

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Finally, the fact that Plaintiff had looked for work as recently

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as 25 days before the hearing was noted by the ALJ, and is, again, a

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proper credibility determinative technique. (AR 25, 39.)
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Consequently, the Court finds that either under the “specific and

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legitimate reasons” test or the “clear and convincing reasons” test,

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the ALJ satisfied his obligation to properly determine the credibility

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of Plaintiff’s subjective complaints, and the Court will therefore

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deny Plaintiff’s relief as requested in his third issue.

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The decision of the ALJ will be affirmed.

The Complaint will be

dismissed with prejudice.
IT IS SO ORDERED.

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DATED: January 11, 2013

/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE

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