Carlos Anguiano v. Carolyn W. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. CV 16-03587 AFM

CARLOS ANGUIANO,

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MEMORANDUM OPINION AND
ORDER AFFIRMING DECISION
OF COMMISSIONER

Plaintiff,
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v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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I.

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BACKGROUND

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Plaintiff Carlos Anguiano filed his application for disability benefits under

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Title II of the Social Security Act and application for supplemental security income

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under Title XVI of the Social Security Act on December 14, 2012. After denial on

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initial review and on reconsideration, a hearing took place before an Administrative

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Law Judge (ALJ) on January 16, 2015 at which Plaintiff testified on his own behalf.

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A vocational expert (“VE”) also testified. In a decision dated February 11, 2015,

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the ALJ found that Plaintiff was not disabled within the meaning of the Social

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Security Act for the period from November 8, 2011 through the date of the

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decision. The Appeals Council declined to set aside the ALJ’s unfavorable decision

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in a notice dated April 4, 2016. Plaintiff filed a Complaint herein on May 23, 2016,

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seeking review of the Commissioner’s denial of his application for benefits.

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In accordance with the Court’s Order Re: Procedures in Social Security

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Appeal, Plaintiff filed a memorandum in support of the complaint on November 15,

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2016 (“Pl. Mem.”), and the Commissioner filed a memorandum in support of her

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answer on December 20, 2016 (“Def. Mem.”). Plaintiff did not file a reply. This

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matter now is ready for decision. 1

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II.

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DISPUTED ISSUES

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As reflected in the parties’ memoranda, the disputed issues are as follows:

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(1)

Whether the ALJ failed to properly evaluate the findings of
consultative examiner Dr. Siekerkotte; and

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(2)

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Whether the ALJ failed to pose a complete hypothetical question to the

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vocational expert and to provide a complete and proper assessment of

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Plaintiff’s residual functional capacity.

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III.

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

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determine whether the Commissioner’s findings are supported by substantial

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evidence and whether the proper legal standards were applied. See Treichler v.

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Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial

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evidence means “more than a mere scintilla” but less than a preponderance. See

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Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d

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1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson,

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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.
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402 U.S. at 401. This Court must review the record as a whole, weighing both the

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evidence that supports and the evidence that detracts from the Commissioner’s

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conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more

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than one rational interpretation, the Commissioner’s decision must be upheld. See

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Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

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Error in a social security determination is subject to harmless error analysis.

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Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Reversal “is not automatic,

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but requires a determination of prejudice.” Id. A reviewing federal court must

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consider case-specific factors, including “an estimation of the likelihood that the

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result would have been different, as well as the impact of the error on the public

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perception of such proceedings.” Id. (footnote and citation omitted).

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IV.

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FIVE-STEP EVALUATION PROCESS

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The Commissioner (or ALJ) follows a five-step sequential evaluation process

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in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920;

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996.

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In the first step, the Commissioner must determine whether the claimant is

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currently engaged in substantial gainful activity; if so, the claimant is not disabled

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and the claim is denied. Id. If the claimant is not currently engaged in substantial

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gainful activity, the second step requires the Commissioner to determine whether

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the claimant has a “severe” impairment or combination of impairments significantly

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limiting his ability to do basic work activities; if not, a finding of nondisability is

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made and the claim is denied. Id. If the claimant has a “severe” impairment or

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combination of impairments, the third step requires the Commissioner to determine

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whether the impairment or combination of impairments meets or equals an

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impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part

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404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits

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are awarded. Id. If the claimant’s impairment or combination of impairments does
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not meet or equal an impairment in the Listing, the fourth step requires the

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Commissioner to determine whether the claimant has sufficient “residual functional

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capacity” to perform his past work; if so, the claimant is not disabled and the claim

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is denied. Id. The claimant has the burden of proving that he is unable to perform

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past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the

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claimant meets this burden, a prima facie case of disability is established. Id. The

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Commissioner then bears the burden of establishing that the claimant is not

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disabled, because he can perform other substantial gainful work available in the

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national economy. Id. The determination of this issue comprises the fifth and final

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step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at

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828 n.5; Drouin, 966 F.2d at 1257.

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V.

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THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS

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At step one, the ALJ found that Plaintiff had not engaged in substantial

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gainful activity since November 8, 2011, the alleged onset date. (AR 12.) At step

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two, the ALJ found that Plaintiff had the following medically determinable

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impairments:

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affective disorder, not otherwise specified. (AR 13.) At step three, the ALJ found

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that Plaintiff did not have an impairment or combination of impairments that meets

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or medically equals the severity of one of the listed impairments. (AR 15.) At step

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four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to

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perform less than the full range of medium work:

degenerative disc disease of the cervical and lumbar spine and

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[Plaintiff] can lift and carry 50 pounds occasionally and 25 pounds

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frequently. . . . can stand and walk six hours out of an eight-hour day

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and sit six hours out of an eight-hour day. . . . can frequently climb,

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balance, kneel, and crawl. . . . can occasionally crouch and stoop.

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(AR 16.)

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Finally, at step five, based on the VE’s testimony, the ALJ concluded that

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Plaintiff is capable of performing his past relevant work as a Forklift Operator,

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Building Material Sales Attendant, Truck Driver, Maintenance Worker and

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Grounds Keeper. (AR 19.) Accordingly, the ALJ concluded that Plaintiff was not

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disabled as defined by the Social Security Act from November 8, 2011 through the

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date of the decision. (AR 20.)

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VI.

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DISCUSSION

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A.

The ALJ’s Evaluation of Dr. Siekerkotte’s Findings

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It is well established in this Circuit that opinions of a consultative examining

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physician, if supported by independent clinical observations, are substantial medical

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evidence and may be relied upon by the ALJ in order to determine the Plaintiff’s

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residual functional capacity. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.

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1995). An ALJ must provide “clear and convincing” reasons for rejecting the

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uncontroverted opinion of an examining physician and may reject the controverted

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opinion of an examining physician only for “specific and legitimate reasons that are

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supported by substantial evidence in the record.” Carmickle v. Comm’r, Soc. Sec.

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Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31).

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An ALJ need not discuss every piece of evidence when evaluating the findings of a

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physician, but he must not ignore “significant probative evidence.” Vincent v.

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Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984); accord Howard ex rel. Wolff v.

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Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).

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Here, Dr. Siekerkotte conducted an independent internal medical evaluation

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and completed a medical source statement assessing Plaintiff’s alleged disabilities

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on June 26, 2013.

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diagnosed low back pain, left wrist pain, anxiety and depression. (AR 290.) He

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assessed Plaintiff with the ability to stand/walk up to six hours, sit with no

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limitations, and carry 50 pounds occasionally and 25 pounds frequently.

(AR 287-290.)

Based on the evaluation, Dr. Siekerkotte

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Id.

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Dr. Siekerkotte also noted that Plaintiff “may use a cane as needed only” but “there

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is no need to use it all the time.” (Id.)

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In the decision, the ALJ assessed Plaintiff with an RFC for a reduced range

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of medium work.

(AR 16-19.)

The ALJ accorded “great weight” to Dr.

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Siekerkotte’s opinion, but did not discuss his statement that Plaintiff may use a cane

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as needed only. (AR 16-19, 290.) Plaintiff contends that the ALJ improperly

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evaluated the findings of consultative examiner Dr. Siekerkotte because without

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explanation, she “implicitly rejected” Dr. Siekerkotte’s statement that Plaintiff may

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use a cane. (Pl. Mem. at 3-4; AR 290.) Plaintiff further contends that the ALJ’s

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disregard of this aspect of Dr. Siekerkotte’s opinion has significant vocational

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ramifications that may lead to a more restrictive residual functional capacity. (Pl.

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Mem. at 3.)

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The Court concurs with the Commissioner that the ALJ properly evaluated

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Dr. Siekerkotte’s opinion. In her evaluation, Dr. Siekerkotte did not state that

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Plaintiff’s use of a cane might affect his physical abilities, did not prescribe

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Plaintiff a cane, and instead opined that a cane was not necessary. (AR 287-90.)

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Dr. Siekerkotte’s brief statement about Plaintiff’s possible use of a cane was merely

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an observation, not an opinion or recommendation that Plaintiff needed to use a

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cane. See Cashin v. Astrue, 2010 WL 749884, at *11 (C.D. Cal. Feb. 24, 2010)

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(physician’s observation that plaintiff needed to use a cane does not constitute an

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objective finding that plaintiff’s cane was medically required). Additionally, no

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physician in the medical record suggested Plaintiff required a cane, and Plaintiff

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himself did not testify that he needed a cane. (Def. Mem. at 2.) Consequently, the

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ALJ was not required to address Dr. Siekerkotte’s observation that Plaintiff may

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use a cane, and the failure to mention a cane was not an implicit rejection of

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Dr. Siekerkotte’s opinion. See Howard ex rel. Wolff, 341 F.3d at 1012 (an ALJ

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need only discuss evidence that is significant and probative); Cashin, 2010 WL

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749884 at *11 (physician's observation that claimant needed a cane was not
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significant probative evidence that the ALJ had to discuss in the absence of

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evidence that the cane was medically required).

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warranted on this ground. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.

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2005).

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B.

Reversal or remand is not

The ALJ’s RFC Finding and Hypothetical Question to the VE

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Plaintiff also contends that reversal or remand is required because the ALJ

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did not provide a complete and proper assessment of the Plaintiff’s RFC and failed

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to pose a complete hypothetical question to the vocational expert (VE). (Pl. Mem.

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at 4.) Plaintiff claims that the ALJ erred in not incorporating into the RFC and the

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hypothetical question Dr. Siekerkotte’s statement that Plaintiff may use a cane as

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needed only, but that Plaintiff has no need to use it all the time (Id.; AR 290.) The

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Court disagrees.

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For the vocational expert’s testimony to constitute substantial evidence, the

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hypothetical question posed must “consider all of the claimant’s limitations.”

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Andrews, 53 F.3d at 1044. As discussed above, the ALJ properly evaluated the

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opinion of Dr. Siekerkotte. Plaintiff’s RFC is not affected by the ALJ’s failure to

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address evidence of Plaintiff’s cane use because the RFC finding was an accurate

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statement of Plaintiff’s physical abilities, and Dr. Siekerkotte’s observation (and the

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medical record as a whole) do not constitute significant probative evidence that the

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use of a cane was medically necessary or reflects any functional limitations. See

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Earle v. Colvin, 2014 WL 2812312 at *4 (C.D. Cal. Jun. 23, 2014) (brief references

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to plaintiff’s cane use were not significant and probative evidence that the ALJ was

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required to discuss before making his RFC determination). As a result, the ALJ

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posed a complete hypothetical question to the vocational expert, including a proper

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assessment of Plaintiff’s residual functional capacity.2 See Bayliss 427 F.3d at

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Commissioner also contends that Plaintiff waived his current challenges by
failing to raise them during the administrative proceedings. (Def. Mem. at 5.)
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1217 (an ALJ’s hypothetical question is proper where it contains only limitations

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that are credible and supported by substantial evidence in the record).

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IT THEREFORE IS ORDERED that Judgment be entered affirming the
decision of the Commissioner and dismissing this action with prejudice.

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DATED:

June 22, 2017

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ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE

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The Court need not reach this issue given the resolution of the substantive issues
raised by Plaintiff.
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