Carlos Anguiano v. Carolyn W. Colvin

Filing 26


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Case No. CV 16-03587 AFM CARLOS ANGUIANO, 12 MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER Plaintiff, 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 17 Defendant. 18 I. 19 BACKGROUND 20 Plaintiff Carlos Anguiano filed his application for disability benefits under 21 Title II of the Social Security Act and application for supplemental security income 22 under Title XVI of the Social Security Act on December 14, 2012. After denial on 23 initial review and on reconsideration, a hearing took place before an Administrative 24 Law Judge (ALJ) on January 16, 2015 at which Plaintiff testified on his own behalf. 25 A vocational expert (“VE”) also testified. In a decision dated February 11, 2015, 26 the ALJ found that Plaintiff was not disabled within the meaning of the Social 27 Security Act for the period from November 8, 2011 through the date of the 28 decision. The Appeals Council declined to set aside the ALJ’s unfavorable decision 1 in a notice dated April 4, 2016. Plaintiff filed a Complaint herein on May 23, 2016, 2 seeking review of the Commissioner’s denial of his application for benefits. 3 In accordance with the Court’s Order Re: Procedures in Social Security 4 Appeal, Plaintiff filed a memorandum in support of the complaint on November 15, 5 2016 (“Pl. Mem.”), and the Commissioner filed a memorandum in support of her 6 answer on December 20, 2016 (“Def. Mem.”). Plaintiff did not file a reply. This 7 matter now is ready for decision. 1 8 II. 9 DISPUTED ISSUES 10 As reflected in the parties’ memoranda, the disputed issues are as follows: 11 (1) Whether the ALJ failed to properly evaluate the findings of consultative examiner Dr. Siekerkotte; and 12 (2) 13 Whether the ALJ failed to pose a complete hypothetical question to the 14 vocational expert and to provide a complete and proper assessment of 15 Plaintiff’s residual functional capacity. 16 III. 17 STANDARD OF REVIEW 18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 19 determine whether the Commissioner’s findings are supported by substantial 20 evidence and whether the proper legal standards were applied. See Treichler v. 21 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 22 evidence means “more than a mere scintilla” but less than a preponderance. See 23 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 24 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 25 reasonable mind might accept as adequate to support a conclusion.” Richardson, 26 27 28 1 The decision in this case is being made based on the pleadings, the administrative record (“AR”), and the parties’ memoranda in support of their pleadings. 2 1 402 U.S. at 401. This Court must review the record as a whole, weighing both the 2 evidence that supports and the evidence that detracts from the Commissioner’s 3 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 4 than one rational interpretation, the Commissioner’s decision must be upheld. See 5 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 6 Error in a social security determination is subject to harmless error analysis. 7 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Reversal “is not automatic, 8 but requires a determination of prejudice.” Id. A reviewing federal court must 9 consider case-specific factors, including “an estimation of the likelihood that the 10 result would have been different, as well as the impact of the error on the public 11 perception of such proceedings.” Id. (footnote and citation omitted). 12 IV. 13 FIVE-STEP EVALUATION PROCESS 14 The Commissioner (or ALJ) follows a five-step sequential evaluation process 15 in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; 16 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. 17 In the first step, the Commissioner must determine whether the claimant is 18 currently engaged in substantial gainful activity; if so, the claimant is not disabled 19 and the claim is denied. Id. If the claimant is not currently engaged in substantial 20 gainful activity, the second step requires the Commissioner to determine whether 21 the claimant has a “severe” impairment or combination of impairments significantly 22 limiting his ability to do basic work activities; if not, a finding of nondisability is 23 made and the claim is denied. Id. If the claimant has a “severe” impairment or 24 combination of impairments, the third step requires the Commissioner to determine 25 whether the impairment or combination of impairments meets or equals an 26 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 27 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits 28 are awarded. Id. If the claimant’s impairment or combination of impairments does 3 1 not meet or equal an impairment in the Listing, the fourth step requires the 2 Commissioner to determine whether the claimant has sufficient “residual functional 3 capacity” to perform his past work; if so, the claimant is not disabled and the claim 4 is denied. Id. The claimant has the burden of proving that he is unable to perform 5 past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the 6 claimant meets this burden, a prima facie case of disability is established. Id. The 7 Commissioner then bears the burden of establishing that the claimant is not 8 disabled, because he can perform other substantial gainful work available in the 9 national economy. Id. The determination of this issue comprises the fifth and final 10 step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 11 828 n.5; Drouin, 966 F.2d at 1257. 12 V. 13 THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 14 At step one, the ALJ found that Plaintiff had not engaged in substantial 15 gainful activity since November 8, 2011, the alleged onset date. (AR 12.) At step 16 two, the ALJ found that Plaintiff had the following medically determinable 17 impairments: 18 affective disorder, not otherwise specified. (AR 13.) At step three, the ALJ found 19 that Plaintiff did not have an impairment or combination of impairments that meets 20 or medically equals the severity of one of the listed impairments. (AR 15.) At step 21 four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to 22 perform less than the full range of medium work: degenerative disc disease of the cervical and lumbar spine and 23 [Plaintiff] can lift and carry 50 pounds occasionally and 25 pounds 24 frequently. . . . can stand and walk six hours out of an eight-hour day 25 and sit six hours out of an eight-hour day. . . . can frequently climb, 26 balance, kneel, and crawl. . . . can occasionally crouch and stoop. 27 (AR 16.) 28 4 1 Finally, at step five, based on the VE’s testimony, the ALJ concluded that 2 Plaintiff is capable of performing his past relevant work as a Forklift Operator, 3 Building Material Sales Attendant, Truck Driver, Maintenance Worker and 4 Grounds Keeper. (AR 19.) Accordingly, the ALJ concluded that Plaintiff was not 5 disabled as defined by the Social Security Act from November 8, 2011 through the 6 date of the decision. (AR 20.) 7 VI. 8 DISCUSSION 9 A. The ALJ’s Evaluation of Dr. Siekerkotte’s Findings 10 It is well established in this Circuit that opinions of a consultative examining 11 physician, if supported by independent clinical observations, are substantial medical 12 evidence and may be relied upon by the ALJ in order to determine the Plaintiff’s 13 residual functional capacity. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 14 1995). An ALJ must provide “clear and convincing” reasons for rejecting the 15 uncontroverted opinion of an examining physician and may reject the controverted 16 opinion of an examining physician only for “specific and legitimate reasons that are 17 supported by substantial evidence in the record.” Carmickle v. Comm’r, Soc. Sec. 18 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). 19 An ALJ need not discuss every piece of evidence when evaluating the findings of a 20 physician, but he must not ignore “significant probative evidence.” Vincent v. 21 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984); accord Howard ex rel. Wolff v. 22 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 23 Here, Dr. Siekerkotte conducted an independent internal medical evaluation 24 and completed a medical source statement assessing Plaintiff’s alleged disabilities 25 on June 26, 2013. 26 diagnosed low back pain, left wrist pain, anxiety and depression. (AR 290.) He 27 assessed Plaintiff with the ability to stand/walk up to six hours, sit with no 28 limitations, and carry 50 pounds occasionally and 25 pounds frequently. (AR 287-290.) Based on the evaluation, Dr. Siekerkotte 5 Id. 1 Dr. Siekerkotte also noted that Plaintiff “may use a cane as needed only” but “there 2 is no need to use it all the time.” (Id.) 3 In the decision, the ALJ assessed Plaintiff with an RFC for a reduced range 4 of medium work. (AR 16-19.) The ALJ accorded “great weight” to Dr. 5 Siekerkotte’s opinion, but did not discuss his statement that Plaintiff may use a cane 6 as needed only. (AR 16-19, 290.) Plaintiff contends that the ALJ improperly 7 evaluated the findings of consultative examiner Dr. Siekerkotte because without 8 explanation, she “implicitly rejected” Dr. Siekerkotte’s statement that Plaintiff may 9 use a cane. (Pl. Mem. at 3-4; AR 290.) Plaintiff further contends that the ALJ’s 10 disregard of this aspect of Dr. Siekerkotte’s opinion has significant vocational 11 ramifications that may lead to a more restrictive residual functional capacity. (Pl. 12 Mem. at 3.) 13 The Court concurs with the Commissioner that the ALJ properly evaluated 14 Dr. Siekerkotte’s opinion. In her evaluation, Dr. Siekerkotte did not state that 15 Plaintiff’s use of a cane might affect his physical abilities, did not prescribe 16 Plaintiff a cane, and instead opined that a cane was not necessary. (AR 287-90.) 17 Dr. Siekerkotte’s brief statement about Plaintiff’s possible use of a cane was merely 18 an observation, not an opinion or recommendation that Plaintiff needed to use a 19 cane. See Cashin v. Astrue, 2010 WL 749884, at *11 (C.D. Cal. Feb. 24, 2010) 20 (physician’s observation that plaintiff needed to use a cane does not constitute an 21 objective finding that plaintiff’s cane was medically required). Additionally, no 22 physician in the medical record suggested Plaintiff required a cane, and Plaintiff 23 himself did not testify that he needed a cane. (Def. Mem. at 2.) Consequently, the 24 ALJ was not required to address Dr. Siekerkotte’s observation that Plaintiff may 25 use a cane, and the failure to mention a cane was not an implicit rejection of 26 Dr. Siekerkotte’s opinion. See Howard ex rel. Wolff, 341 F.3d at 1012 (an ALJ 27 need only discuss evidence that is significant and probative); Cashin, 2010 WL 28 749884 at *11 (physician's observation that claimant needed a cane was not 6 1 significant probative evidence that the ALJ had to discuss in the absence of 2 evidence that the cane was medically required). 3 warranted on this ground. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 4 2005). 5 B. Reversal or remand is not The ALJ’s RFC Finding and Hypothetical Question to the VE 6 Plaintiff also contends that reversal or remand is required because the ALJ 7 did not provide a complete and proper assessment of the Plaintiff’s RFC and failed 8 to pose a complete hypothetical question to the vocational expert (VE). (Pl. Mem. 9 at 4.) Plaintiff claims that the ALJ erred in not incorporating into the RFC and the 10 hypothetical question Dr. Siekerkotte’s statement that Plaintiff may use a cane as 11 needed only, but that Plaintiff has no need to use it all the time (Id.; AR 290.) The 12 Court disagrees. 13 For the vocational expert’s testimony to constitute substantial evidence, the 14 hypothetical question posed must “consider all of the claimant’s limitations.” 15 Andrews, 53 F.3d at 1044. As discussed above, the ALJ properly evaluated the 16 opinion of Dr. Siekerkotte. Plaintiff’s RFC is not affected by the ALJ’s failure to 17 address evidence of Plaintiff’s cane use because the RFC finding was an accurate 18 statement of Plaintiff’s physical abilities, and Dr. Siekerkotte’s observation (and the 19 medical record as a whole) do not constitute significant probative evidence that the 20 use of a cane was medically necessary or reflects any functional limitations. See 21 Earle v. Colvin, 2014 WL 2812312 at *4 (C.D. Cal. Jun. 23, 2014) (brief references 22 to plaintiff’s cane use were not significant and probative evidence that the ALJ was 23 required to discuss before making his RFC determination). As a result, the ALJ 24 posed a complete hypothetical question to the vocational expert, including a proper 25 assessment of Plaintiff’s residual functional capacity.2 See Bayliss 427 F.3d at 26 27 2 28 Commissioner also contends that Plaintiff waived his current challenges by failing to raise them during the administrative proceedings. (Def. Mem. at 5.) 7 1 1217 (an ALJ’s hypothetical question is proper where it contains only limitations 2 that are credible and supported by substantial evidence in the record). 3 * 4 5 6 * * * IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. 7 8 DATED: June 22, 2017 9 10 11 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court need not reach this issue given the resolution of the substantive issues raised by Plaintiff. 8

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