Jose Antonio Ascencio v. Carolyn W. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECUTIRY by Magistrate Judge John E. McDermott 1 . IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this case with prejudice. [See Order for details.] (san)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting Commissioner of Social Security, ) ) ) Defendant. ) JOSE ANTONIO ASCENCIO, Case No. CV 14-00971-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 18 PROCEEDINGS 19 On February 7, 2014, Jose Antonio Ascencio (“Plaintiff” or “Claimant”) filed a 20 complaint seeking review of the decision by the Commissioner of Social Security 21 (“Commissioner”) denying Plaintiff’s application for Social Security Disability Insurance 22 benefits. The Commissioner filed an Answer on May 27, 2014. On September 8, 2014, 23 the parties filed a Joint Stipulation (“JS”). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record 26 (“AR”), the Court concludes that the Commissioner’s decision must be affirmed and this 27 case dismissed with prejudice. 28 1 BACKGROUND 2 Plaintiff Jose Antonio Ascencio is a 56-year-old male who applied for Social 3 Security Disability Insurance benefits on September 28, 2010, initially alleging disability 4 beginning February 14, 2009. (AR 49.) Plaintiff’s claim was denied initially on January 5 13, 2011. (AR 49.) Plaintiff filed a timely request for hearing, which was held before 6 Administrative Law Judge (“ALJ”) William Ordas on July 20, 2011 in Los Angeles, 7 California. (AR 49.) Plaintiff testified with the assistance of Spanish interpreter Amanda 8 Willis and was represented by counsel. (AR 49.) Vocational expert (“VE”) Sandra Trost, 9 M.A. also appeared and testified at the hearing. (AR 49.) 10 At the hearing and through his representative, Claimant made a motion to amend 11 his alleged onset date to September 5, 2009. (AR 85.) The ALJ granted this motion. 12 (AR 85.) 13 The ALJ issued an unfavorable decision on August 3, 2011. (AR 49-56.) The 14 Appeals Council denied review on July 19, 2013. (AR 6-8.) 15 DISPUTED ISSUES 16 As reflected in the Joint Stipulation, Plaintiff only raises the following disputed 17 issue as a ground for reversal and remand: 18 19 1. Whether the ALJ provided clear and convincing reasons for rejecting Jose Ascencio’s testimony. 20 STANDARD OF REVIEW 21 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine 22 whether the ALJ’s findings are supported by substantial evidence and free of legal error. 23 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 24 924 F.2d 841, 846 (9th Cir. 1991) (ALJ’s disability determination must be supported by 25 substantial evidence and based on the proper legal standards). 26 Substantial evidence means “‘more than a mere scintilla,’ but less than a 27 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting 28 Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such 2 1 relevant evidence as a reasonable mind might accept as adequate to support a 2 conclusion.” Richardson, 402 U.S. at 401 (internal quotation marks and citation 3 omitted). 4 This Court must review the record as a whole and consider adverse as well as 5 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 6 Where evidence is susceptible to more than one rational interpretation, the ALJ’s 7 decision must be upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 8 (9th Cir. 1999). “However, a reviewing court must consider the entire record as a whole 9 and may not affirm simply by isolating a ‘specific quantum of supporting evidence.’” 10 Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 11 1989)); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 12 13 THE SEQUENTIAL EVALUATION The Social Security Act defines disability as the “inability to engage in any 14 substantial gainful activity by reason of any medically determinable physical or mental 15 impairment which can be expected to result in death or . . . can be expected to last for a 16 continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 17 1382c(a)(3)(A). The Commissioner has established a five-step sequential process to 18 determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. 19 The first step is to determine whether the claimant is presently engaging in 20 substantial gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the 21 claimant is engaging in substantial gainful activity, disability benefits will be denied. 22 Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether 23 the claimant has a severe impairment or combination of impairments. Parra, 481 F.3d at 24 746. An impairment is not severe if it does not significantly limit the claimant’s ability to 25 work. Smolen, 80 F.3d at 1290. Third, the ALJ must determine whether the impairment 26 is listed, or equivalent to an impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I 27 of the regulations. Parra, 481 F.3d at 746. If the impairment meets or equals one of the 28 listed impairments, the claimant is presumptively disabled. Bowen, 482 U.S. at 141. 3 1 Fourth, the ALJ must determine whether the impairment prevents the claimant from 2 doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 3 Before making the step four determination, the ALJ first must determine the claimant’s 4 residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is “the most 5 [one] can still do despite [his or her] limitations” and represents an assessment “based 6 on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC 7 must consider all of the claimant’s impairments, including those that are not severe. 20 8 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 9 If the claimant cannot perform his or her past relevant work or has no past 10 relevant work, the ALJ proceeds to the fifth step and must determine whether the 11 impairment prevents the claimant from performing any other substantial gainful activity. 12 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). The claimant bears the burden of 13 proving steps one through four, consistent with the general rule that at all times the 14 burden is on the claimant to establish his or her entitlement to benefits. Parra, 481 F.3d 15 at 746. Once this prima facie case is established by the claimant, the burden shifts to 16 the Commissioner to show that the claimant may perform other gainful activity. 17 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a 18 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 20 the claimant can do, given his or her RFC, age, education, and work experience. 20 21 C.F.R. § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is 22 disabled and entitled to benefits. Id. THE ALJ DECISION 23 24 In this case, the ALJ determined at step one of the sequential process that Plaintiff 25 has not engaged in substantial gainful activity since September 5, 2009, the amended 26 alleged onset date. (AR 51.) 27 At step two, the ALJ determined that Plaintiff has the following medically 28 determinable severe impairments: coronary artery disease (CAD), hypertension, 4 1 hyperlipidemia, osteoarthritis of the shoulders and back, diabetes mellitus, and obesity. 2 (AR 51-53.) 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 5 listed impairments. (AR 53.) 6 The ALJ then found that Plaintiff has the RFC to perform less than the full range of 7 medium work with the following limitations: 8 Claimant can lift and carry up to 50 pounds occasionally and 25 9 pounds frequently; stand and walk up to 6 hours in an 8-hour day; and 10 sit up to 6 hours in an 8-hour day. He can occasionally bend, kneel, 11 push, and pull. He can tolerate the normal stress of an ordinary work 12 environment. Thus, he is capable of a limited range of medium 13 exertion as defined in 20 C.F.R. § 404.1567(c). 14 (AR 53-56.) In determining this RFC, the ALJ made an adverse credibility determination. 15 (AR 54.) 16 At step four, the ALJ found that Plaintiff is able to perform his past relevant work 17 as a janitor and maintenance worker as such work does not require the performance of 18 work-related activities precluded by Claimant’s RFC (20 C.F.R. § 404.1565). (AR 56.) 19 Consequently, the ALJ found that Claimant was not disabled, within the meaning 20 of the Social Security Act. (AR 56.) 21 DISCUSSION 22 The ALJ decision must be affirmed. The ALJ properly discounted Plaintiff’s 23 alleged subjective symptoms. 24 The ALJ’s RFC is supported by substantial evidence. The ALJ’s nondisability 25 determination is supported by substantial evidence and free of legal error. 26 I. THE ALJ’S RFC IS SUPPORTED BY SUBSTANTIAL EVIDENCE 27 Plaintiff challenges the ALJ’s RFC, contending that the ALJ erred in discounting 28 Plaintiff’s subjective symptom allegations. The Court disagrees. 5 1 A. Relevant Federal Law 2 The ALJ’s RFC is not a medical determination but an administrative finding or 3 legal decision reserved to the Commissioner based on consideration of all the relevant 4 evidence, including medical evidence, lay witnesses, and subjective symptoms. See 5 SSR 96-5p; 20 C.F.R. § 1527(e). In determining a claimant’s RFC, an ALJ must 6 consider all relevant evidence in the record, including medical records, lay evidence, and 7 the effects of symptoms, including pain reasonably attributable to the medical condition. 8 Robbins, 446 F.3d at 883. 9 The test for deciding whether to accept a claimant’s subjective symptom testimony 10 turns on whether the claimant produces medical evidence of an impairment that 11 reasonably could be expected to produce the pain or other symptoms alleged. Bunnell 12 v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 13 722 (9th Cir. 1998); Smolen, 80 F.3d at 1281-82 esp. n.2. The Commissioner may not 14 discredit a claimant’s testimony on the severity of symptoms merely because they are 15 unsupported by objective medical evidence. Reddick, 157 F.3d at 722; Bunnell, 947 16 F.2d at 343, 345. If the ALJ finds the claimant’s pain testimony not credible, the ALJ 17 “must specifically make findings which support this conclusion.” Bunnell, 947 F.2d at 18 345. The ALJ must set forth “findings sufficiently specific to permit the court to conclude 19 that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278 20 F.3d 947, 958 (9th Cir. 2002); see also Rollins v. Massanari, 261 F.3d 853, 856-57 (9th 21 Cir. 2001); Bunnell, 947 F.2d at 345-46. Unless there is evidence of malingering, the 22 ALJ can reject the claimant’s testimony about the severity of a claimant’s symptoms only 23 by offering “specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d at 24 1283-84; see also Reddick, 157 F.3d at 722. The ALJ must identify what testimony is 25 not credible and what evidence discredits the testimony. Reddick, 157 F.3d at 722; 26 Smolen, 80 F.3d at 1284. 27 28 6 1 B. Analysis 2 Plaintiff Jose Antonio Ascencio alleges a heart attack in 2009 and says he 3 experiences pain in the left anterior chest and chest fatigue, headaches and dizziness. 4 (AR 54.) He reports mild to moderate and intermittent pain in the shoulder and back. 5 (AR 54.) He further alleges numbness in the arm and leg, shortness of breath and 6 decreased visual acuity in the left eye because of diabetes. (AR 54.) He also states he 7 has difficulty bending and walking. (AR 54.) The ALJ determined that Plaintiff has the 8 medically determinable impairments of coronary artery disease (CAD), hypertension, 9 hyperlipidemia, osteoarthritis of the shoulders and back, diabetes mellitus and obesity. 10 (AR 51.) 11 Nonetheless, the ALJ assessed Plaintiff with a limited range of medium work RFC. 12 (AR 53.) In determining Plaintiff’s RFC, the ALJ concluded that Plaintiff’s medically 13 determinable impairments reasonably could be expected to cause the alleged symptoms 14 related to his diabetes, cardiac condition and osteoarthritis in the back and shoulders. 15 (AR 54.) The ALJ, however, also found that Plaintiff’s statements regarding the 16 intensity, persistence and limiting effects of these symptoms were “not credible” to the 17 extent inconsistent with the ALJ’s RFC. (AR 54.) Because the ALJ did not make a 18 finding of malingering, he was required to provide clear and convincing reasons 19 supported by substantial evidence for discounting Plaintiff’s subjective symptom 20 allegations. Smolen, 80 F.3d at 1283-84. The ALJ did so. 21 First, the ALJ found that the objective medical evidence did not support the 22 alleged severity of Claimant’s symptoms or establish disabling impairments and 23 limitations. (AR 54-55.) An ALJ is entitled to consider whether there is a lack of medical 24 evidence to corroborate a claimant’s alleged pain symptoms so long as it is not the only 25 reason for discounting a claimant’s credibility. Burch v. Barnhart, 400 F.3d 676, 680-81 26 (9th Cir. 2005). Although Plaintiff alleges he suffered a heart attack in El Salvador in 27 2009, medical records from the hospital in El Salvador indicate he was diagnosed with 28 unstable angina. (AR 51, 54, 222-223.) USC healthcare providers subsequently made 7 1 a similar diagnosis and also diagnosed coronary artery disease (CAD). (AR 51, 54.) 2 The ALJ observed that unstable angina is a similar but less serious cardiac condition 3 than a heart attack. (AR 54.) Plaintiff did not seek follow-up treatment for this or any 4 other condition for many months until he sought treatment again for his unstable angina 5 in December 2010. He denied, however, any shortness of breath and at a follow-up visit 6 a week later he denied experiencing further chest pain. (AR 54.) On December 27, 7 2010 Dr. Azizollah Karamlou, the consulting internist, noted a history of chest pain but 8 found Plaintiff’s heart to have regular sinus rhythm without evidence of enlargement, 9 heaves or thrills. (AR 54, 190.) Heart sounds were normal, with no murmurs or gallops. 10 (AR 54, 190.) Dr. Karamlou assessed a less than full range of medium work RFC. (AR 11 55, 191.) On January 10, 2011 State agency reviewing physician Dr. Paulette Harrar 12 arrived at a similar assessment. (AR 55, 193-199.) A February 2011 EKG showed only 13 mild abnormalities. (AR 54.) The ALJ determined that the record indicates Plaintiff’s 14 cardiac condition was not severe enough to preclude him from working. (AR 54.) 15 Dr. Karamlou also diagnosed Plaintiff with osteoarthritis of the shoulders and 16 lumbar spine and noted Plaintiff was using ibuprofen for control of this condition. (AR 17 52, 55, 188.) The ALJ noted Dr. Karamlou found Plaintiff showed a full range of motion 18 in the shoulders and upper and lower extremities, including a full range of motion of the 19 hips. (AR 53, 55, 190-191.) Dr. Karamlou also found normal motor functions and a 20 normal gait without the need for any assistive device. (AR 55, 190-191.) Thus, 21 Dr. Karamlou found Plaintiff is capable of medium exertion with limitations of six hours of 22 walking, standing or sitting in an eight hour day and moderate limitations in bending, 23 kneeling and pushing. (AR 55, 191.) Dr. Harrar concurred in Dr. Karamlou’s RFC 24 except she opined Claimant is capable of frequent postural activities. (AR 55, 193-199.) 25 Plaintiff has diabetes mellitus. (AR 51, 52.) Dr. Karamlou noted that Plaintiff’s 26 diabetes is non-insulin dependent and Plaintiff takes only oral medications such as 27 Metformin. (AR 55, 188, 191.) Dr. Karamlou also found Plaintiff’s visual acuity within 28 normal limits. (AR 55, 189.) Claimant also denied experiencing many diabetic-related 8 1 symptoms, such as polyuria, polydipsia, or nocturna. (AR 55.) There was no evidence 2 to support the Claimant’s allegations of diabetic-related symptoms, such as fatigue, 3 dizziness, or blurred vision. (AR 55.) 4 The ALJ’s second reason for discounting Plaintiff’s subjective symptom allegations 5 is that he has received only conservative treatment for his medical impairments. (AR 6 55.) An ALJ may consider conservative treatment in evaluating credibility. Burch, 400 7 F.3d at 681; Parra, 481 F.3d at 750-751. Here, health care providers treated Plaintiff’s 8 osteoarthritis conservatively with ibuprofen. (AR 55.) Impairments that can be 9 controlled effectively with medication are not disabling. Warre v. Comm’r, 439 F.3d 10 1001, 1006 (9th Cir. 2006). The ALJ also found that healthcare providers treated 11 Plaintiff’s diabetes with oral medication, not insulin, and other conservative methods 12 such as a low fat and low salt diet, exercise and abstinence from smoking. (AR 55.) 13 Thus, the ALJ found that the Claimant’s diabetes and musculosketal conditions are not 14 as severe as alleged. (AR 55.) 15 Third, the ALJ found that Plaintiff’s daily activities are inconsistent with disabling 16 impairments. (AR 56.) The ALJ found that Claimant admitted he was capable of a 17 variety of activities, including grocery shopping, laundry, vacuuming, cleaning the 18 bathroom, picking up leaves and driving a car. (AR 56.) Plaintiff argues that these 19 activities do not necessarily prove that Plaintiff can work but they do suggest Claimant 20 has greater functional abilities than alleged. See Valentine v. Comm’r, 574 F.3d 685, 21 694 (9th Cir. 2009) (inconsistent daily activities may not prove a claimant can work but 22 do suggest that the alleged severity of his or her limitations was exaggerated). 23 Plaintiff disputes the ALJ’s interpretation of the evidence regarding Plaintiff’s 24 credibility but the ALJ is responsible for resolving conflicts in the medical evidence and 25 ambiguities in the record. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 26 Where the ALJ’s interpretation of the evidence is reasonable as it is here, it should not 27 be second-guessed. Rollins, 261 F.3d at 857. 28 9 1 The ALJ discounted the credibility of Plaintiff’s subjective symptom allegations for 2 clear and convincing reasons supported by substantial evidence. The ALJ’s RFC is 3 supported by substantial evidence. The ALJ’s nondisability determination is supported 4 by substantial evidence and free of legal error. ORDER 5 6 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 7 Commissioner of Social Security and dismissing this case with prejudice. 8 9 DATED: November 4, 2014 10 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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