Janel Flores Baines v. Michael J Astrue

Filing 18

MEMORANDUM AND OPINION by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. (jy)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BACKGROUND I On January 5, 2005, plaintiff applied for disability benefits under both Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, and the Supplemental Security Income program ("SSI") of Title XVI Plaintiff Janel Flores Baines filed a complaint on September 25, 2007, seeking review of the Commissioner's decision denying her applications for disability benefits. The Commissioner answered the JANEL FLORES BAINES, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) __________________________________) No. EDCV 07-1170-RC OPINION AND ORDER UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

complaint on February 4, 2008, and the parties filed a joint stipulation on March 25, 2008.

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of the Act, 42 U.S.C. § 1382(a), claiming an inability to work since January 3, 2003, due to back pain and hip injuries. Administrative Record ("A.R.") 12, 51-55, 63-64. Certified

The plaintiff's

applications were initially denied on June 2, 2005, and were denied again on October 14, 2005, following reconsideration. A.R. 33-47.

The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge F. Keith Varni ("the ALJ") on January 26, 2007. A.R. 30, 209-23. On February 6, 2007, the ALJ A.R. 9-19. The

issued a decision finding plaintiff is not disabled.

plaintiff appealed the decision to the Appeals Council, which denied review on July 26, 2007. A.R. 4-8.

II The plaintiff, who was born on March 6, 1977, is currently 31 years old. A.R. 51, 211. She has an eleventh-grade education, has

trained to be a certified nurse's assistant, and previously worked as a telephone service provider. A.R. 56-62, 64-65, 68, 212, 214.

On January 9, 2003, plaintiff was hospitalized at the Arrowhead Regional Medical Center ("ARMC"), where she gave birth to a son, who weighed 12 pounds, 6 ounces. A.R. 120-30, 208. A pubiotomy1 and A.R. 121, 127. On

symphysiotomy2 were performed to aid the delivery.

A pubiotomy is the "surgical separation of the pubic bone lateral to the median line." Dorland's Illustrated Medical Dictionary, 1491 (29th ed. 2000). A symphysiotomy involves "the division of the fibrocartilage of the symphysis pubis, in order to facilitate delivery, by increasing the diameter of the pelvis." Id. at 1744. 2
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January 17, 2003, plaintiff was doing well and walking without help. A.R. 90. On March 6, 2004, plaintiff was admitted to ARMC, where she A.R. 107-19.

underwent a cesarean section and tubal ligation.

On December 30, 2004, Harold Luke, M.D., examined plaintiff and diagnosed her with morbid obesity and right hip pain. A.R. 136.

Lumbar spine x-rays taken January 23, 2006, were normal, while right hip x-rays taken the same day showed at least 3 cm. of diastasis3 of the pubic symphysis, with no evidence of fracture. A.R. 158-59.

On May 20, 2005, Buneri T. Sophon, M.D., examined plaintiff, diagnosed her with a history of an operative cut in the pubic bone, and opined plaintiff "does not have any significant physical impairment and there are no functional limitations." A.R. 139-43.

On May 31, 2005, nonexamining physician George G. Spellman, M.D., opined plaintiff can occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, and can sit, stand and/or walk for 6 hours in an 8-hour work day. A.R. 147-54. On September 26,

2005, nonexamining physician John Meek, M.D., agreed with this assessment, stating there is no evidence of a severe physical impairment. A.R. 156.

On April 20, 2006, plaintiff was treated in the emergency room at

Diastasis means "a form of dislocation in which there is a separation of two bones normally attached to each other without the existence of a true joint; as in separation of the pubic symphysis." Dorland's Illustrated Medical Dictionary at 494. 3

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Redlands Community Hospital for dysfunctional uterine bleeding and dehydration. A.R. 196-97. Bilateral hip x-rays taken October 5,

2006, were negative, while pelvic x-rays demonstrated a 3-cm. pubic diastasis, which appeared to be chronic, with mild associated bilateral SI joint degenerative changes and a solitary metallic surgical clip in the right upper pelvic tissues. A.R. 185. Plaintiff

was again seen in the emergency room on December 22, 2006, when she was diagnosed with anemia, general malaise, and menorrhagia,4 among other things. A.R. 186-87, 193-95. An electrocardiogram was A.R. 191-92.

abnormal, but chest x-rays were normal.

On June 6, 2006, plaintiff was examined at the New Millennium Medical Associates, when she was diagnosed with depression, chronic back pain, and obesity, and she was prescribed Wellbutrin.5 75. A.R. 174-

However, plaintiff never filled the Wellbutrin prescription A.R. 173.

because she "lost" it.

On January 22, 2007, Dennis M. Carden, D.O., stated: //

Menorrhagia, or hypermenorrhea, is "excessive uterine bleeding occurring at regular intervals; the period of flow being of usual duration." Dorland's Illustrated Medical Dictionary at 853, 1086. 2000). "Wellbutrin . . . is given to help relieve certain kinds of major depression. [¶] Major depression involves a severely depressed mood (for 2 weeks or more) and loss of interest or pleasure in usual activities accompanied by sleep and appetite disturbances, agitation or lack of energy, feelings of guilt or worthlessness, decreased sex drive, inability to concentrate, and perhaps thoughts of suicide. . . ." The PDR Family Guide to Prescription Drugs, 737 (8th ed. 2000). 4
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[Plaintiff] underwent a vaginal delivery of a 13 pound infant on January 3, 2003. [¶] During the birth process,

her pelvis became separated. [sic] to pelvic instability.

This separation may have lead [Plaintiff] has received [¶] She is

orthopedic treatment and physical therapy. currently in need of ambulatory assistance. this instability may be permanent.

The duration of

A.R. 208.

DISCUSSION III The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Stubbs-Danielson v. Astrue, 539 F.3d 1169,

1172 (9th Cir. 2008); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008).

"In determining whether the Commissioner's findings are supported by substantial evidence, [this Court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick

v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). "Where the evidence can

reasonably support either affirming or reversing the decision, [this Court] may not substitute [its] judgment for that of the 5

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Commissioner."

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007),

cert. denied, 128 S. Ct. 1068 (2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

The claimant is "disabled" for the purpose of receiving benefits under the Act if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. §§

423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995),

cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

The Commissioner has promulgated regulations establishing a fivestep sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. §§ 404.1520, 416.920. In the First Step,

the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b).

If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. C.F.R. §§ 404.1520(c), 416.920(c). 20

If so, in the Third Step, the ALJ

must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. C.F.R. §§ 404.1520(d), 416.920(d). 20

If not, in the Fourth Step, the

ALJ must determine whether the claimant has sufficient residual 6

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functional capacity despite the impairment or various limitations to perform her past work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If not,

in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since her alleged onset date, January 3, 2003. (Step One). The ALJ then

found that plaintiff "has the following severe combination of impairments: minor degree of pubic diastasis combined with obesity disorder" (Step Two); however, she does not have an impairment or combination of impairments that meets or equals a Listing. Three). (Step

The ALJ next determined plaintiff can perform her past

relevant work as a telephone service operator; therefore, she is not disabled. (Step Four).

IV The Step Two inquiry is "a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290; Webb v. Barnhart, 433 The Supreme Court has recognized that

F.3d 683, 687 (9th Cir. 2005).

including a severity requirement at Step Two of the sequential evaluation process "increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account." Bowen v. Yuckert, 482 U.S. 137, 153, 107 However, an overly

S. Ct. 2287, 2297, 96 L. Ed. 2d 119 (1987). 7

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stringent application of the severity requirement violates the Act by denying benefits to claimants who do meet the statutory definition of disabled. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994).

A severe impairment or combination of impairments within the meaning of Step Two exists when there is more than a minimal effect on an individual's ability to do basic work activities. Webb, 433 F.3d

at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also 20 C.F.R. §§ 404.1521(a), 416.921(a) ("An impairment or combination of impairments is not severe if it does not significantly limit [a person's] physical or mental ability to do basic work activities."). Basic work activities are "the abilities and aptitudes

necessary to do most jobs," including physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling, as well as the capacity for seeing, hearing and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting. 416.921(b); Webb, 433 F.3d at 686. 20 C.F.R. §§ 404.1521(b), If the claimant meets her burden

of demonstrating she suffers from an impairment affecting her ability to perform basic work activities, "the ALJ must find that the impairment is `severe' and move to the next step in the SSA's fivestep process." Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir.

2001) (emphasis in original); Webb, 433 F.3d at 686.

The plaintiff contends that the ALJ erred in failing to find she has a severe mental impairment. The Court disagrees. 8

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"A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by the claimant's statement of symptoms." 20 C.F.R. §§ 404.1508,

416.908; Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). Here, plaintiff, who was represented by counsel at the administrative hearing, A.R. 211, predicated her disability claim on her physical complaints, rather than any mental impairment. See, e.g., A.R. 63-64.

Moreover, at the administrative hearing, plaintiff testified she was not receiving any mental health treatment, but she was talking to her pastor. A.R. 221. Nevertheless, plaintiff also testified she had

been taking Wellbutrin twice a day for approximately 6 months; but this statement is not supported by the medical record, which shows that although her treating physician diagnosed her with depression and prescribed Wellbutrin, she lost the prescription and never had it filled. A.R. 168-75.

Although plaintiff's treating physician diagnosed her with depression in June 2006, A.R. 174-75, that diagnosis, by itself, does not demonstrate plaintiff has a severe mental impairment, see, e.g., Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) ("Although the [claimant] clearly does suffer from diabetes, high blood pressure, and arthritis, there is no evidence to support his claim that those impairments are `severe.'"); Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) ("The mere existence of an impairment is insufficient proof of a disability."), and there is simply no evidence in the record supporting plaintiff's claim of a severe mental impairment. Therefore, the ALJ's implied finding that plaintiff does not have a // 9

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severe mental impairment is supported by substantial evidence.6 Carmickle, 533 F.3d at 1164-65; Ukolov, 420 F.3d at 1006.

V A claimant's residual functional capacity ("RFC") is what she can still do despite her physical, mental, nonexertional, and other limitations. Mayes, 276 F.3d at 460; Cooper v. Sullivan, 880 F.2d Here, the ALJ found plaintiff retains A.R. 15. However,

1152, 1155 n.5 (9th Cir. 1989).

the RFC to perform a full range of medium work.7

plaintiff contends the ALJ's decision is not supported by substantial evidence because the ALJ did not address the side effects of her medication and erroneously rejected the opinion of her treating physician, Dr. Carden.

A.

Side Effects From Medication:

In determining a claimant's limitations, the ALJ must consider all factors that might have a significant impact on a claimant's

Alternately, even if the ALJ should have found plaintiff has a severe mental impairment, his failure to do so was harmless error since plaintiff "has not set forth, and there is no evidence in the record, of any functional limitations as a result of her [mental impairment] that the ALJ failed to consider." Burch v. Barnhart, 400 F.3d 676, 682-84 (9th Cir. 2005); see also Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) ("The court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination." (citations and internal quotation marks omitted)). Under Social Security regulations, "[m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. §§ 404.1567(c), 416.967(c). 10
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ability to work, including the side effects of medication.

Erickson

v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993); Varney v. Sec'y of Health & Human Servs., 846 F.2d 581, 585 (9th Cir. 1988). "[S]ide

effects can be a `highly idiosyncratic phenomenon' and a claimant's testimony as to their limiting effects should not be trivialized." Varney, 846 F.2d at 585. Thus, when a claimant testifies she is

experiencing a side effect known to be associated with a particular medication, the ALJ may disregard the testimony only if he "support[s] that decision with specific findings similar to those required for excess pain testimony, as long as the side effects are in fact associated with the claimant's medication(s)." Id.

Here, plaintiff testified she takes Darvocet for pain,8 and that medication "seems to . . . make [her] a little dizzy. . . ."9 217-18. A.R.

The ALJ noted this testimony, but concluded it was not

credible to the extent it conflicted with plaintiff's ability to perform medium work. A.R. 16-18. Since plaintiff has not challenged

the ALJ's negative credibility determination, this finding provides a sufficient basis to reject her testimony about the side effects of Darvocet. See Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002)

(ALJ properly rejected claimant's alleged side effects, including dizziness and difficulties in concentration, with finding claimant Darvocet is a "mild narcotic analgesic[] prescribed for the relief of mild to moderate pain, with or without fever." The PDR Family Guide to Prescription Drugs, 177 (8th ed. 2000). Dizziness is a common side effect of Darvocet. Id. The plaintiff also stated she previously took Vicodin and Tylenol with Codeine for pain, and those medications sometimes made her "blitzed[,]" so her medication was changed to Darvocet. A.R. 217-18. 11
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lacked credibility).

Moreover, plaintiff points to no specific

evidence in the record demonstrating she complained to any physician about the side effects of Darvocet. To the contrary, when examined at

Redlands Community Hospital on December 22, 2006, approximately one month before the administrative hearing, plaintiff reported no reaction to the medication she was taking. A.R. 193. Therefore, the

ALJ did not err in failing to address the alleged side effects from plaintiff's medication. Greger v. Barnhart, 464 F.3d 968, 973 (9th

Cir. 2006); see also McFarland v. Astrue, 288 Fed. Appx. 357, 360 (9th Cir. 2008) ("[Claimant] claims the ALJ failed to consider medication side effects. However, [claimant] points to no specific evidence in To the

the record where he complained of medication side effects.

contrary, the record is replete with statements by [claimant] to medical care providers that he was not experiencing side effects from his various medications. Thus, we find the ALJ did not err in failing

to address side effects of medication in his decision.").10

B.

Treating Physician's Opinion:

The medical opinions of treating physicians are entitled to special weight because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987);

Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Therefore, the ALJ must provide clear and convincing reasons

for rejecting the uncontroverted opinion of a treating physician, Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick,

10

See Fed. R. App. P. 32.1(a); Ninth Circuit Rule 36-3(b). 12

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157 F.3d at 725, and "[e]ven if [a] treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing `specific and legitimate reasons' supported by substantial evidence in the record." Tommasetti, 533 F.3d at 1041. Reddick, 157 F.3d at 725;

On January 22, 2007, Dr. Carden recited that on January 3, 2003, plaintiff's pelvis became separated while giving birth, she has received orthopedic treatment and physical therapy for this condition, and she currently needs ambulatory assistance. A.R. 208. The ALJ

rejected Dr. Carden's opinion that plaintiff "currently needs ambulatory assistance," finding it "unpersuasive, tentative, speculative, and unsupported by any citation of clinically determinable limitations."11 A.R. 18. In making this determination,

the ALJ found that Dr. Carden did not "support this assertion with any diagnostic findings[,]" did not "articulate with specificity[] the details of [plaintiff's] instability[] or the nature of the ambulatory assistance that she needs[,]" and "did not indicate what[,] if any, prescription of treatment the [plaintiff's] condition requires." 18. A.R.

Since "[t]he ALJ need not accept the opinion of any physician,

including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings[,]" Thomas, 278 F.3d at 957; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005), this

The ALJ also stated "Dr. Carden . . . does not appear to be a treating physician as there are no medical records to show that Dr. Carden has actually treated the claimant or ever examined her for that matter." A.R. 18. The Court disagrees since ARMC medical records show Dr. Carden has treated plaintiff. See, e.g., A.R. 85-87, 89, 119-21. 13

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reason for rejecting Dr. Carden's opinion is a specific and legitimate reason supported by substantial evidence.

The ALJ also found that Dr. Carden's opinion is inconsistent with diagnostic findings in the record showing plaintiff's ambulation is unimpaired. A.R. 18. This finding, too, is supported by substantial

evidence in the record, A.R. 90, 107, 140, and constitutes a specific and legitimate reason for rejecting Dr. Carden's opinion. Batson v.

Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Morgan, 169 F.3d at 602; see also Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (ALJ properly rejected treating physician's opinion that was inconsistent with other physicians' examination of claimant). Thus, "the ALJ provided `specific and legitimate' reasons

based on substantial evidence for [his] rejection of [Dr. Carden's] opinion."12 Tommasetti, 533 F.3d at 1037. Thus, there is no merit to

plaintiff's claim that the ALJ's Step Four determination is not supported by substantial evidence.

ORDER IT IS ORDERED that: (1) plaintiff's request for relief is denied; // The plaintiff also claims the ALJ failed to fully develop the record because he did not recontact Dr. Carden to inquire about the basis for Dr. Carden's opinion. However, "[a]n ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes, 276 F.3d at 459-60; Webb, 433 F.3d at 687. Here, "[t]he record before the ALJ was neither ambiguous nor inadequate to allow for proper evaluation of the evidence." Mayes, 276 F.3d at 460. Therefore, the ALJ did not fail to properly develop the medical record. 14
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and (2) the Commissioner's decision is affirmed, and Judgment shall be entered in favor of defendant.

DATE:

December 11, 2008

/s/ Rosalyn M. Chapman ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE

R&R-MDO\07-1170.mdo 12/11/08

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