Jennie J Gonzales v. Michael J Astrue

Filing 15

MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the Agency's decision is affirmed and the case is dismissed with prejudice. IT IS SO ORDERED. (see document for complete details) (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JENNIE J. GONZALES, Plaintiff, 11 12 13 14 15 v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-3501-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration (“the Agency”), denying her applications for Disability 20 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 21 She claims that the Administrative Law Judge (“ALJ”) erred when she: 22 (1) relied on the vocational expert’s testimony regarding the number 23 of jobs in the economy; and (2) found that Plaintiff was not credible. 24 For the reasons discussed below, the Agency's decision is affirmed. II. 25 26 SUMMARY OF PROCEEDINGS In March 2009, Plaintiff applied for DIB and SSI, alleging that 27 she was disabled due to arthritis and constant pain in her neck, back, 28 legs, and joints. (Administrative Record (“AR”) 124-33, 168, 183.) 1 Her applications were denied. 2 and was granted a hearing before an ALJ. 3 2010, she appeared with counsel for the hearing. 4 February 9, 2011, the ALJ issued a decision denying benefits. 5 33.) 6 (AR 1-6, 17-18.) 9 (AR 85, 88-89.) On July 13, (AR 45-72.) On (AR 23- This action followed. III. A. She then requested Plaintiff appealed to the Appeals Council, which denied review. 7 8 (AR 74, 76, 79-83.) ANALYSIS The Vocational Expert’s Testimony The vocational expert testified that Plaintiff could not perform 10 her past work but could perform work as a ticket checker, order clerk, 11 and final assembler, despite her limitations. 12 determined that there were approximately 2,900 ticket checker jobs 13 locally and 75,000 nationally, 500 order clerk jobs locally and 18,000 14 nationally, and 2,500 final assembler jobs locally and 60,000 15 nationally. 16 that Plaintiff was not disabled since there were a significant number 17 of jobs that she could still perform in the economy. (AR 65-66.) (AR 65-66.) He Relying on this testimony, the ALJ concluded (AR 31-32.) 18 After the ALJ issued her decision, Plaintiff appealed to the 19 Appeals Council, submitting jobs reports from two sources--Job Browser 20 Pro and Specific Occupational Employment - Unskilled Quarterly--that 21 compile and analyze job statistics. 22 information contained in these reports, there were significantly fewer 23 jobs available in the local and national economy than the vocational 24 expert claimed. 25 that the ALJ erred in relying on the vocational expert’s testimony 26 that there were a significant number of jobs in the economy which she 27 could perform. 28 reasons, this argument is rejected. (AR 209–19.) (AR 209–19.) According to the Based on this data, Plaintiff argues (Joint Stip. at 4-11, 17-19.) 2 For the following 1 Generally speaking, an ALJ is entitled to rely on a vocational 2 expert’s testimony regarding the number of jobs in the economy. See 3 20 C.F.R. § 416.966(e) (authorizing ALJs to rely on vocational expert 4 testimony to determine occupational issues); Bayliss v. Barnhart, 427 5 F.3d 1211, 1217-18 (9th Cir. 2005) (upholding ALJ’s reliance on 6 vocational expert’s testimony regarding job numbers). 7 testimony amounts to substantial evidence. 8 F.3d 1157, 1163 (9th Cir. 2001) (testimony of vocational expert 9 constitutes substantial evidence). Further, this Osenbrock v. Apfel, 240 And a vocational expert is not 10 required to provide a foundation for this testimony as his expertise 11 alone is a sufficient foundation. 12 this reason, the ALJ’s reliance on the vocational expert’s testimony 13 that there were a significant number of jobs in the economy–-and the 14 Appeals Council’s affirmation of that finding--was supported by 15 substantial evidence. 16 Plaintiff disagrees. Bayliss, 427 F.3d at 1218. For She contends that the Appeals Council 17 should have overturned the ALJ’s decision and relied on the jobs 18 reports she submitted. 19 the ALJ reached an appropriate decision after considering the 20 available evidence, the Appeals Council was free to reject the jobs 21 reports Plaintiff submitted, which were provided after the ALJ’s 22 decision. 23 (explaining Appeals Council free to reject evidence acquired by 24 claimant after adverse decision by ALJ). 25 Appeals Council was not required to explain why it was rejecting them. 26 Id. at 972. 27 28 There is no merit to this argument. Because See Gomez v. Chater, 74 F.3d 967, 971-72 (9th Cir. 1996) And, in doing so, the Even if the law were different, the Court would still affirm the Agency here. The fact that jobs numbers in the reports Plaintiff 3 1 submitted to the Appeals Council differ from the vocational expert’s 2 numbers does not mean that the Agency’s decision was infirm. 3 Agency is charged with resolving conflicts in the evidence. 4 Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (holding 5 ALJ’s decision must be upheld where it is susceptible to more than one 6 rational interpretation). 7 in its resolution of the conflict. The See The Court cannot say that the Agency erred 8 Further, the Court does not find these reports to be as nearly as 9 compelling as Plaintiff does, largely because it is not clear what the 10 numbers mean. 11 numbers and also provides adjusted and weighted figures for the same 12 occupations. 13 numbers. 14 than the vocational expert’s numbers, but there is no explanation as 15 to how the lower figures were calculated. 16 that subject (which it did not have), the Appeals Council would have 17 been hard pressed to interpret these numbers on its own. 18 The Job Browser Pro report lists raw data for job The raw numbers approximate the vocational expert’s The adjusted and weighted figures are significantly lower Absent expert testimony on As for the job numbers in the Specific Occupational Employment - 19 Unskilled Quarterly, they do not seem to make much sense. 20 example, for the job of parimutuel ticket checker, the report on its 21 face appears to indicate that, in the entire state of California, 22 there were only 10 people employed in this occupation in the first 23 quarter of 2011. 24 of parimutuel ticket checkers in a state with as many racetracks as 25 California.1 (AR 217.) For This seems like an extremely small number Absent any explanation as to what the numbers mean, the 26 27 28 1 According to the California Horse Racing Board website at www.chrb.ca.gov, horse racing is enjoyed year round in California and (continued...) 4 1 Court does not find the reports persuasive. That is not to say, 2 however, that the Court would have found fault with the Agency had it 3 relied on these reports. 4 numbers in the reports mean, the Court cannot conclude that the Agency 5 erred by not accepting them over the vocational expert’s testimony. 6 B. But without any explanation as to what the The Credibility Finding 7 The ALJ determined that Plaintiff was not credible because: 8 (1) the objective medical evidence did not support her claims of 9 intense pain; (2) Plaintiff’s failure to receive regular treatment was 10 inconsistent with her pain allegations; (3) the type of medical 11 treatment Plaintiff received was inconsistent with her allegations; 12 (4) Plaintiff’s failure to follow her prescribed course of treatment 13 undermined her pain testimony; (5) the medical opinions contained in 14 the record failed to support Plaintiff’s claims of disabling pain; and 15 (6) Plaintiff’s “presentation” undermined her credibility. 16 31.) 17 following reasons, this argument is rejected. Plaintiff argues that the ALJ erred in doing so. (AR 27- For the 18 ALJs are tasked with judging the credibility of witnesses. 19 doing so, they are allowed to rely on ordinary credibility evaluation 20 techniques. 21 2008). 22 of an impairment that reasonably could be expected to produce the 23 alleged symptoms, an ALJ may not discount the testimony without 24 providing “specific, clear and convincing reasons” for doing so. 25 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. Where, as here, a claimant produces objective medical evidence 26 27 1 28 In (...continued) takes place at 15 different venues. 5 1 The first reason cited by the ALJ for questioning Plaintiff’s 2 credibility was that the intensity of her reported pain was not 3 consistent with the medical findings, particularly the findings of Dr. 4 Hoang, who performed an orthopedic evaluation in October 2010. 5 27-28, 272-76.) 6 testimony, see Osenbrock, 240 F.3d at 1165-66 (upholding ALJ’s 7 credibility determination in part because medical evaluations revealed 8 little evidence of disabling abnormality), and it is supported by the 9 record. (AR This was a valid reason for questioning Plaintiff’s According to Plaintiff, due to constant pain in her neck, 10 back, legs, and joints, she could not stand for longer than eight 11 minutes and was unable to walk for more than 20 feet. 12 When Dr. Hoang examined her, however, he found “[n]o significant 13 objective findings” related to Plaintiff’s complaints and concluded 14 that she would be able to stand for two hours in an eight-hour workday 15 with changes in position and normal breaks. (AR 58, 183.) (AR 275, 276.) 16 Plaintiff argues that the ALJ’s findings were inadequate, 17 claiming, for example, that, though the ALJ relied on negative x-ray 18 findings from October 2010, she “fail[ed] to correlate” these negative 19 findings with the diagnosis of venous insufficiency in the record. 20 (Joint Stip. at 23.) 21 permitted to take the negative knee and elbow x-rays into account in 22 considering whether Plaintiff’s complaints of pain in her joints were 23 credible. 24 found, as pointed out above, that she could stand for two hours, as 25 did examining internist Dr. Benrazavi. 26 despite finding decreased sensation in the right leg and a positive 27 straight leg test, Dr. Benrazavi found that Plaintiff’s range of 28 motion in the lower and upper extremities was grossly normal with no This argument is rejected. The ALJ was Moreover, Dr. Hoang noted her vascular insufficiency but 6 (AR 225, 275-76.) Further, 1 indication of pain. 2 variations in circumference measurements of Plaintiff’s limbs, found 3 no significant objective findings supporting her alleged pain. 4 274-75.) 5 legs, he found a full range of motion in her arms and legs. 6 36.) 7 (AR 222-24.) Likewise, Dr. Hoang, who detected (AR And, while Dr. Osuji noted reduced strength in Plaintiff’s (AR 234- The ALJ also questioned Plaintiff’s testimony regarding the 8 extent of her pain and suffering because it was contradicted by the 9 fact that Plaintiff had not received regular medical treatment for her 10 maladies. 11 her testimony, Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) 12 (allegations of disabling pain can be discredited by evidence of 13 infrequent medical treatment), and is supported by the record. 14 medical record establishes that, over a four-year period (from the 15 alleged onset date of March 2007 to the ALJ’s decision in February 16 2011), Plaintiff sought treatment only three times. 17 2008 visit at Hubert H. Humphrey Comprehensive Health Center with 18 complaints of right knee problems causing Plaintiff to fall down), 262 19 (August 2008 visit at Los Angeles County, USC Medical Center (“LAC- 20 USC”) with complaints of left shoulder pain and reduced range of 21 motion), 270-71 (July 2010 visit to LAC-USC emergency room complaining 22 of pain).) 23 sought no treatment at all. 24 that Plaintiff could be as incapacitated as she claimed but only seek 25 medical attention three times during a four-year period. 26 (AR 28-29.) Again, this was a valid reason for questioning The (AR 257 (June In fact, between August 2008 and July 2010, Plaintiff As the ALJ noted, it does not make sense (AR 28-29.) Plaintiff argues that the ALJ’s analysis was flawed because 27 “[t]he law does not require receiving excessive treatment or that 28 [Plaintiff] abuse emergency rooms.” 7 (Joint Stip. at 30.) While this 1 is true, it does not undermine the ALJ’s finding that Plaintiff’s 2 infrequent trips to the doctor raise questions about her credibility. 3 There is a wide discrepancy between seeking excessive treatment and 4 seeking treatment three times in four years for constant pain and 5 suffering, which, according to Plaintiff, renders her unable 6 to walk more than 20 feet or stand for more than eight minutes, 7 essentially confining her to a wheelchair or a bed for most of the 8 day. 9 (AR 58, 183.) Plaintiff argues that she did not have the “facility” to obtain 10 better treatment than the “system” provided. (Joint Stip. at 30.) 11 The Court is unclear as to what Plaintiff means by this. 12 that she is using the word “facility” in the sense of cognitive 13 capacity, there is nothing in the record to suggest that she is 14 limited. 15 ability (or inability), the Court does not find her argument 16 persuasive. 17 obtain treatment that she cannot afford as a basis for finding her not 18 disabled, see Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995) (“[A] 19 disabled claimant cannot be denied benefits for failing to obtain 20 medical treatment that would ameliorate his condition if he cannot 21 afford that treatment.”), there is no evidence in the record that 22 Plaintiff’s lack of resources had anything to do with her lack of 23 treatment. 24 claimed that she had sought and received additional treatment but that 25 she had been unable to locate the records documenting it. 26 In fact, according to Plaintiff, she usually received treatment two 27 times a week. 28 submitted any records of this treatment and left the record open to Assuming To the extent that she is using the term to denote financial Though an ALJ may not rely on a claimant’s failure to On the contrary, at the administrative hearing, Plaintiff (AR 54-55.) (AR 59-62.) The ALJ noted that Plaintiff had not 8 1 allow her to do so. 2 other records, so the ALJ arranged for her to be examined by another 3 doctor in lieu of the records. 4 circumstances, the Court cannot say that the ALJ’s reliance on the 5 dearth of medical records to question Plaintiff’s testimony was 6 unfair.2 7 (AR 59-62, 70-72.) Plaintiff never produced any (AR 70, 272-82.) Under these The ALJ also relied on the fact that Plaintiff had failed to fill 8 her prescriptions and had failed to undergo an MRI and an x-ray, as 9 ordered by her doctors, to question her sincerity. (AR 28-29.) 10 too, was a legitimate justification for discounting Plaintiff’s 11 testimony and is supported by the record. 12 This, 597, 603 (9th Cir. 1989). 13 See Fair v. Bowen, 885 F.2d The ALJ rejected Plaintiff’s testimony based in part on the fact 14 that it was contradicted by the opinions of examining physicians Dr. 15 Hoang and Dr. Benrazavi.3 (AR 31.) This was a valid reason for 16 2 17 18 19 20 21 22 Plaintiff argues that the ALJ failed to fully develop the record. (Joint Stip. at 22-23) In light of the fact that the ALJ kept the record open following the hearing to allow Plaintiff to submit additional records and, as a backstop, arranged for Plaintiff to be examined by another doctor when no records were found, this argument is rejected. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“The ALJ may discharge [her] duty [to develop the record] in several ways, including: subpoenaing the claimant’s physicians, submitting questions to the claimant’s physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record.”). 23 3 24 25 26 27 28 The ALJ rejected the opinion of a third consultative examiner, Dr. Osuji. (AR 30.) Plaintiff argues that the ALJ erred in doing so because she “ignored without stating why she rejected the opinion of Dr. Osuji” regarding Plaintiff’s need for a cane or wheelchair. (Joint Stip. at 23-24.) This argument is belied by the record. The ALJ rejected Dr. Osuji’s opinion because it was dependent on Plaintiff’s subjective report of her condition, which the ALJ found to be exaggerated. (AR 30.) This was a legitimate justification for (continued...) 9 1 questioning Plaintiff’s testimony. See Matthews v. Shalala, 10 F.3d 2 678, 680 (9th Cir. 1993) (holding ALJ’s finding that claimant retained 3 the residual functional capacity to perform a limited range of medium 4 work supported by substantial evidence where no doctor opined claimant 5 was totally disabled); see also Harper v. Sullivan, 887 F.2d 92, 96-97 6 (5th Cir. 1989) (substantial evidence supported ALJ’s conclusion 7 plaintiff’s complaints were not credible where “[n]o physician stated 8 that [plaintiff] was physically disabled”). 9 it is supported by the record.4 And, as discussed above, 10 11 12 13 14 15 16 17 18 3 (...continued) rejecting the doctor’s opinion. See Tommasetti, 533 F.3d at 1041 (“An ALJ may reject a treating physician's opinion if it is based to a large extent on a claimant's self-reports that have been properly discounted as incredible.”) (internal quotation marks and citation omitted). Moreover, the ALJ included Plaintiff’s need to use a cane in her residual functional capacity determination. (AR 26.) 19 4 20 21 22 23 24 25 26 27 28 The ALJ also purported to discount Plaintiff’s testimony based on her “presentation,” though there was no further discussion on this issue. (AR 28.) A fair reading of her decision suggests that she did not consider this factor at all. To the extent that she did and that she was referring to Plaintiff’s demeanor and appearance at the hearing, this was not a valid reason to question Plaintiff’s credibility. See Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985) (“The ALJ's reliance on his personal observations of [the claimant] at the hearing has been condemned as ‘sit and squirm’ jurisprudence.”) (citations omitted). Nevertheless, even if the ALJ did rely on Plaintiff’s appearance here, any error was harmless in light of the other, legitimate reasons that the ALJ relied on to reach her credibility determination. See Carmickle v. Comm’r. Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (explaining “relevant inquiry . . . is whether the ALJ’s decision remains legally valid,” despite errors in the credibility analysis). 10 1 2 3 IV. CONCLUSION For the reasons set forth above, the Agency’s decision is affirmed and the case is dismissed with prejudice. 4 IT IS SO ORDERED. 5 DATED: April 15, 2013. 6 7 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\GONZALES, 3501\memo opinion and order.wpd 11

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