Barbara Velasquez v. Carolyn W Colvin

Filing 19

MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. For all of the foregoing reasons, this Court affirms the decision of the Administrative Law Judge. (See Order for complete details) (afe)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 BARBARA VELASQUEZ, ) No. ED CV 13-1542-AS ) ) MEMORANDUM AND OPINION Plaintiff, ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the Social Security Administration, ) ) ) Defendant. ) ) PROCEEDINGS 18 19 20 Plaintiff Barbara Velasquez (“Plaintiff”), a former fast food 21 worker, asserts disability since June 22 physical impairments. 23 (“ALJ”) examined the record and heard testimony from Plaintiff and a 24 vocational expert on February 8, 2012. 25 29, 2012, the ALJ denied Plaintiff benefits in a written decision. 26 (A.R. 8—23). 27 the ALJ’s decision. (A.R. 102, 105). 1, 2009, based on alleged The Administrative Law Judge (A.R. 24—37). On February On July 10, 2013, the Appeals Council denied review of (A.R. 1—3). 28 1 1 On September 4, 2013, Plaintiff filed a Complaint, pursuant to 2 42 U.S.C. §§ 405(g) and 1383(c), alleging that the Social Security 3 Administration erred in denying her disability benefits (Docket Entry 4 No. 3). 5 Complaint, and the Certified Administrative Record (“A.R.”) (Docket 6 Entry Nos. 13, 14). 7 United States Magistrate Judge (Docket Entry Nos. 9, 11). 8 11, 9 setting forth their respective positions on Plaintiff’s claim (Docket 10 On December 31, 2013, Defendant filed an Answer to the 2014, the The parties have consented to proceed before a parties filed a Joint Stipulation On April (“Joint Stip.”) Entry No. 18). 11 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 12 13 “Social Security disability benefits claimants have the burden 14 15 of proving disability.” 16 F.3d 1380, 1380 (9th Cir. 1985). 17 the 18 reason 19 impairment...which 20 continuous 21 § 22 disabled, ALJs follow a five-step process set forth in 20 C.F.R. 23 § 404.1520(a)(4). 24 one through four.” 25 2007). “inability of to any period 423(d)(1)(A). Bellamy v. Sec’y Health & Human Serv., 755 engage in A claimant is disabled if she has any substantial medically determinable has or of In lasted not less order to can than be physical expected 12 determine gainful to months.” whether a activity by or mental last for 42 a U.S.C. claimant is “The claimant bears the burden of proving steps Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 26 27 At step one, the ALJ must determine whether or not the claimant 28 is actually engaged in any “substantial gainful activity,” as defined 2 1 by 20 C.F.R. § 404.1572. If 2 claimant evaluation continues to step two. is not so engaged, the See 20 C.F.R. § 404.1520(a)(4)(i). 3 At step two, the ALJ determines whether the claimed physical or 4 5 mental impairments are severe. 6 determining severity, “the ALJ must consider the combined effect of 7 all of the claimant’s impairments on her ability to function, without 8 regard to whether each alone was sufficiently severe.” Smolen v. 9 Chater, 42 80 F.3d 1273, 423(d)(2)(B)). 20 C.F.R. § 404.1520(a)(4)(ii). 1290 (9th evidence “establishes a slight abnormality that has ‘no more than a 12 minimal effect on an individual’s ability to work.’” 13 (quoting Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)). 14 the ALJ concludes that the claimant does have a medically severe 15 impairment, the ALJ proceeds to the next step in the sequence.” 16 v. 17 § 404.1520(a)(4)(ii). 683, 686 (9th Cir. severe U.S.C 11 F.3d considered (citing § 433 are 1996) 10 Barnhart, Impairments Cir. When 2005); unless the Id. at 1290 See 20 “[I]f Webb C.F.R. 18 19 At step three, the ALJ considers whether the claimant’s severe 20 impairments are disabling. 21 claimant is considered disabled if her purported conditions meet or 22 are medically equivalent to a listing found in 20 C.F.R. Part 404, 23 Subpart P, Appendix 1. 24 Cir. 2005). 25 impairment in appendix 1 if it is at least equal in severity and 26 duration 27 404.1526. 28 rather to 20 C.F.R. § 404.1520(a)(4)(iii). The Burch v. Barnhart, 400 F.3d 676, 679 (9th “[An] impairment is medically equivalent to a listed the criteria of any listed impairment.” 20 C.F.R. “Medical equivalence must be based on medical findings[]” than “[a] generalized assertion” 3 or opinion testimony 1 regarding “functional problems.” Tackett v. Apfel, 180 F.3d 1094, 2 1100 (9th Cir. 1999) (citing 20 C.F.R. § 404.1526). 3 4 If the ALJ concludes that claimant is not disabled at step 5 three, the ALJ moves to step four and considers whether the claimant 6 can return to her past relevant work. 7 C.F.R. § 404.1520(a)(4)(iv). 8 claimant’s 9 § 404.1520(a)(4)(iv). Residual despite Burch, 400 F.3d at 679; See 20 In order to do so, the ALJ determines Functional Capacity (“RFC”). 20 C.F.R. A claimant’s RFC is “what [claimant] can still 10 do [claimant’s] limitations,” and is “based on 11 relevant medical and other evidence in [the] case record.” 12 416.945(a)(1). 13 her past relevant work, she is not considered disabled. 14 all the F.3d at 679. 20 C.F.R. If the claimant’s RFC dictates that she can return to Burch, 400 15 16 If the claimant proves in step four that she cannot return to 17 her past relevant work, the ALJ proceeds to step five. 18 § 404.1520(a)(4)(v). 19 Secretary to show that the claimant can do other kinds of work.” 20 Embrey v. Bowden, 849 F.2d 418, 422 (9th Cir. 1988). 21 ALJs “can call upon a vocational expert to testify as to: (1) what 22 jobs the claimant, given his or her [RFC], would be able to do; and 23 (2) the availability of such jobs in the national economy.” 24 180 F.3d at 1101. If claimant does not have the RFC to work in any 25 available she 26 § 404.1520(a)(4)(v). jobs, 20 C.F.R. At step five “the burden of proof shifts to the is considered 27 28 4 disabled. At this point, 20 Tackett, C.F.R. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 1 2 In applying for disability insurance benefits, Plaintiff alleged 3 4 the following 5 diabetes, asthma, and joint pain, and alleged that the onset date of 6 these impairments was June 1, 2009. 7 at 8 testified that she has pain in both knees and her lower back. 9 29). the disabling hearing before severe the impairments: ALJ arthritic (A.R. 102, 105). on February 8, knee pain, Additionally, 2012, Plaintiff (A.R. She testified that sometimes she takes Vicodin two to three 10 times a day, due to the pain. (A.R. 33). Plaintiff claimed that she 11 cannot walk for more than five minutes at a time, or stand for more 12 than ten to fifteen minutes at a time. 13 stated that she uses an albuterol inhaler daily, and takes daily 14 medication for her diabetes. 15 that she left work in 2003 due to a complicated pregnancy, and that 16 she has been unable to find work since then. (A.R. 29). (A.R. 30—31). Plaintiff also She further testified (A.R. 32). 17 18 The ALJ applied the five-step evaluation process to determine 19 whether Plaintiff was disabled. (A.R. 13—19). 20 determined not 21 gainful activity.” 22 Plaintiff 23 obesity, mild bilateral chondromalacia patellae, diabetes mellitus, 24 and asthma. 25 of skin cancer, a right ankle sprain, abscesses, a cystic lesion, 26 bilateral epicondylitis, and had surgery to remove a small foreign 27 object lodged in her ear, but did not find these impairments severe that Plaintiff suffers (Id.). was (A.R. 13). from the engaged At step one, the ALJ in any “substantially At step two, the ALJ found that following severe impairments: morbid The ALJ also noted that Plaintiff has a history 28 5 1 because they did not last the durational requirement or did not have 2 “more than a minimal effect” on Plaintiff’s ability to work. (Id.). 3 At 4 step three, the ALJ determined that Plaintiff’s severe 5 impairments did not meet or equal a medical listing found in 20 6 C.F.R. Part 404, Subpart P, Appendix 1. 7 of the record, the ALJ found that Plaintiff’s medically determinable 8 impairments 9 symptoms. could reasonably (A.R. 15). be (A.R. 13—14). expected to cause Upon review the alleged The ALJ also found, however, that Plaintiff’s 10 “statements concerning the intensity, persistence, 11 effects of these symptoms are not credible.” and limiting (Id.). 12 Before proceeding to step four, the ALJ found that Plaintiff had 13 14 the RFC to perform light work with the following limitations: 15 lift and carry 20 pounds occasionally and 10 pounds frequently. She can stand and walk for 6 hours out of an 8-hour workday, and she can sit for 6 hours out of an 8hour workday. She can occasionally climb ramps and stairs; and she can occasionally balance, stoop, kneel, crouch, and crawl[]. She cannot climb ladders, ropes, or scaffolds. She should avoid concentrated exposure to gases, dusts, fumes, and environmental irritants. She should avoid extreme cold. 16 17 18 19 20 21 22 23 24 25 26 27 (A.R. 14). The ALJ based the RFC finding on the opinions of Dr. Bilezikjian, who conducted an orthopedic consultative examination, and medical consultants Dr. Lockie and Dr. Meek, all of whom determined that Plaintiff had the RFC to perform work at the medium exertion level. (A.R. 17, 171—174, 175—181, 192—193). However, the ALJ found that Plaintiff had the RFC to perform light work after 28 6 1 considering Plaintiff’s subjective complaints, her morbid obesity, 2 and the objective medical evidence. (A.R. 17). 3 4 At step four, the ALJ, relying on the testimony of the VE, found 5 that Plaintiff was able to perform her past relevant work as a fast 6 food worker, as generally performed. (A.R. 17—18, 34). 7 Alternatively, 8 the ALJ found that, in addition to her past 9 relevant work, Plaintiff was also able to perform other jobs existing 10 in significant numbers in both the regional and national economies, 11 such 12 “cleaner/housekeeper.” 13 testimony of the VE, who considered all of Plaintiff’s limitations in 14 providing his opinion. 15 the ALJ concluded that Plaintiff was not disabled under 42 U.S.C. § 16 423(d)(1)(A). as an “assembler, small products,” (A.R. 18). a “cashier II,” or a The ALJ’s findings relied on the (A.R. 33—36). As a result of these findings, 17 STANDARD OF REVIEW 18 19 20 This court reviews the Administration’s decision to determine 21 if: (1) the Administration’s findings are supported by substantial 22 evidence; and (2) The Administration used proper legal standards. 23 Smolen, 24 scintilla, but less than a preponderance.” 25 F.3d 1035, 1039 (9th Cir. 1995). 26 evidence supports a finding, “a court must consider [] the record as 27 a 28 detracts from the [Commissioner’s] conclusion.” 80 whole, F.3d at weighing 1279. both “Substantial evidence is more than a Andrews v. Shalala, 53 To determine whether substantial evidence that 7 supports and evidence that Reddick v. Chater, 1 157 F.3d 715, 720 (9th Cir. 1998). 2 reasonably 3 conclusion, [a] court may not substitute its judgment for that of the 4 ALJ.” 5 Cir. 2004). support either As a result, “[i]f evidence can affirming or reversing the ALJ’s Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th 6 PLAINTIFF’S CONTENTION 7 8 Plaintiff 9 contends that the ALJ erred in her assessment of 10 Plaintiff’s credibility, and failed to provide clear and convincing 11 reasons for rejecting Plaintiff’s testimony. (Joint Stip. 2—10). 12 DISCUSSION 13 14 After consideration of the record as a whole, the Court finds 15 16 that the Commissioner's findings are supported 17 by substantial evidence and are free from material1 legal error. 18 A. The ALJ Did Not Err in Evaluating Plaintiff’s Credibility 19 20 If a claimant asserts that pain is the primary reason a severe 21 22 impairment 23 subjective symptoms may be crucial to the ALJ’s evaluation. 24 Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir 1995). 25 26 27 28 is disabling, the claimant’s 1 testimony regarding her See The ALJ must The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (stating that an ALJ’s decision will not be reversed for errors that are harmless). 8 1 make “an explicit credibility finding whenever the claimant’s 2 credibility is a critical factor in the Secretary’s determination.” 3 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). 4 determine whether a claimant’s testimony is credible, the ALJ engages 5 in a two-step analysis. 6 Cir. 2014). In order to Garrison v. Colvin, 759 F.3d 995, 1014 (9th 7 First, the claimant “must produce objective medical evidence of 8 9 an underlying impairment ‘which could reasonably be expected to 10 produce the pain or other symptoms alleged.’” 11 947 12 423(d)(5)(A)(1988)). 13 impairment, “the claimant need not produce objective medical evidence 14 of the pain or fatigue itself, or the severity thereof.” Smolen, 80 15 F.3d that 16 impairment] could reasonably have caused some degree of the symptom.” 17 Id. F.2d at 341, 1282. 344 (9th In Instead, Cir. 1991) producing the Bunnell v. Sullivan, (quoting evidence claimant “need of only 42 the show U.S.C. § underlying [the 18 19 Second, once the claimant has produced the requisite objective 20 medical evidence, 21 regarding the severity of her symptoms.” 22 Absent affirmative evidence of malingering, however, the ALJ may only 23 reject 24 convincing reasons for doing so.” 25 alleged symptoms, an ALJ may consider: “(1) ordinary techniques of 26 credibility 27 prior 28 testimony by the claimant that appears to be less than candid; (2) a the plaintiff’s “ALJ testimony evaluation, inconsistent may such statements as reject “by the specific, clear and In assessing a claimant’s claimant’s concerning testimony Smolen, 80 F.3d at 1284. offering Id. 9 claimant’s reputation the symptoms, for and lying, other 1 unexplained or inadequately explained failure to seek treatment or to 2 follow a prescribed course of treatment; and (3) the claimant’s daily 3 activities.” 4 record 5 other third parties.” and Id. An ALJ may also consider “the claimant’s work observations of treating and examining physicians and Id. 6 Here, 7 the ALJ examined 8 testimony from Plaintiff. 9 ALJ determined of that an the (A.R. 13—37). Plaintiff underlying Administrative had Record heard Based on the record, the “produce[d] impairment and which objective 10 evidence 11 expected to produce the pain or other symptoms alleged.” 12 However, the ALJ rejected the 13 disabling effects of her symptoms, and offered specific, clear and 14 convincing reasons for doing so. 15 the ALJ are supported by the record. claimant’s could medical testimony (A.R. 15—17). reasonably be (A.R. 15). regarding the The reasons given by 16 17 Conservative Treatment 18 19 “[E]vidence a of ‘conservative claimant’s testimony treatment’ regarding is the sufficient severity of to 20 discount an 21 impairment.” 22 (holding that Plaintiff’s use of over-the-counter pain medications to 23 treat pain was inconsistent with Plaintiff’s claims that pain was 24 disabling). 25 visits, 26 ibuprofen in order to manage her pain. 27 327, 361, 385). 28 fact that December 26, 2011, was the “only time recently that any Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) Here, the ALJ pointed out that on a number of clinical Plaintiff stated that she was only taking Tylenol or (A.R. 16—17, 171, 250, 263, Furthermore, the ALJ included in her decision the 10 1 care provider has prescribed [Plaintiff] Vicodin.” 2 Accordingly, the ALJ properly relied on the medical records which 3 showed that, until recently, plaintiff had largely treated her pain 4 with 5 Plaintiff’s assertions regarding the severity of her pain. the use of over-the-counter medication (A.R. 17, 450). in discounting 6 Objective Medical Evidence 7 8 9 While a claimant’s testimony regarding her symptoms “cannot be 10 rejected on the sole ground that it is not fully corroborated by 11 objective medical evidence, the medical evidence is still a relevant 12 factor in determining the severity of the claimant’s pain and its 13 disabling effects.” 14 Cir. 2001) (citing 20 C.F.R. § 404.1592(c)(2)); Burch v. Barnhart, 15 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence 16 cannot form the sole basis for discounting pain testimony, it is a 17 factor that the ALJ can consider in his credibility analysis.”). 18 Here, the ALJ found that, despite Plaintiff’s claims of disabling 19 impairments, Plaintiff’s “[medical] treatment has consisted largely 20 of visits for minor issues and transient complaints.” 21 This finding is supported by the record. Rollins v. Massanari, 261 F.3d 853, 857 (9th (A.R. 17). 22 Of 23 the numerous occasions on which Plaintiff sought medical 24 treatment in 2010 and 2011, only a few involved complaints of back or 25 knee pain. 26 despite 27 2 28 her (A.R. 276, 361, 371, 396, 427).2 complaints of debilitating knee The ALJ found that pain, “x-rays of It should be noted, however, that two of Plaintiff’s visits were the result of knee pain that occurred after she fell. (A.R. 361, 396). 11 1 [Plaintiff’s] knee have been normal.” 2 Furthermore, 3 Plaintiff “is able to move about the office slowly, without any 4 assistance, 5 table...without any assistance or difficulty.” 6 ALJ also noted Dr. Bilezikjian’s observations that Plaintiff’s gait 7 appeared normal, her knees displayed “no instability,” and that she 8 “[did] not use assistive devices or braces for normal ambulation.” 9 (A.R. 15, 172—173). the and ALJ is reiterated able to Dr. get (A.R. 17, 173, 386, 391). Bilezikjian’s onto and off findings the that examination (A.R. 15, 172). The 10 11 With respect to Plaintiff’s asthma, the ALJ pointed out that 12 although Plaintiff suffers from asthma, there is “no evidence of 13 emergency 14 exacerbation.” 15 are unsupported by objective medical evidence, the ALJ properly found 16 Plaintiff’s 17 symptoms to be less than credible. room visits or (A.R. 17). statements hospitalization for acute asthma Because Plaintiff’s allegations of pain regarding the disabling effects of her 18 19 Contradiction With The Medical Record 20 21 “Contradiction with the medical record is a sufficient basis for 22 rejecting the claimant’s subjective testimony.” 23 Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). 24 found that Plaintiff’s statements regarding her use of Vicodin were 25 contradicted by the medical record. 26 that, in order to manage the disabling pain in her knees and lower 27 back, she takes Vicodin two to three times per day. 28 However, the ALJ noted that December 26, 2011, was the “only time 12 (A.R. 16). Carmickle v. Comm’r Here, the ALJ Plaintiff testified (A.R. 29). 1 recently that any care provider has prescribed [Plaintiff] Vicodin[]” 2 (A.R. 3 prescription or treatment for her pain or ongoing prescriptions for 4 Vicodin.” 5 required a prescription drug as powerful as Vicodin in order to 6 manage 7 contends that she “misunderstood” the ALJ’s questions about when and 8 how 9 unavailing. 17, 450), and that (A.R. 16). her often pain she is took “the record does not show any ongoing Accordingly, Plaintiff’s testimony that she undercut by Vicodin. the (Joint medical Stip. record. 7). This Plaintiff argument is Plaintiff testified that she must take Vicodin multiple 10 times a day to manage her disabling pain in response to questioning 11 by her own attorney. (A.R. 29). 12 when prescribed 13 Therefore, Plaintiff’s testimony about taking Vicodin in a continuous 14 manner in order to manage her discomfort was not ambiguous or based 15 on any misunderstanding of what was being asked of her. 16 Plaintiff’s testimony about her use of Vicodin is belied by the 17 medical record, the ALJ correctly found Plaintiff’s testimony about 18 the use of Vicodin to be less than forthcoming and self-serving. she had been The ALJ’s questions were limited to Vicodin and who prescribed it. Because 19 Inconsistent Statements 20 21 An 22 ALJ may rely on “ordinary techniques of credibility 23 evaluation” in considering Plaintiff’s credibility. Smolen, 80 F.3d 24 at 1284. 25 allegations based on inconsistencies in the testimony,” Bunnell, 947 26 F.2d at 346, or based on “inconsistencies between...the testimony and 27 the claimant’s conduct,” Molina v. Astrue, 674 F.3d 1104, 1112 (9th 28 Cir. As a result, “the adjudicator may discredit the claimant’s 2012). The ALJ found that 13 Plaintiff “made inconsistent 1 statements regarding why she stopped working.” 2 171). 3 hearing, 4 complications with her pregnancy. 5 for 6 stopped working on June 1, 2009, due to knee pain. 7 Plaintiff told Dr. Bilezikjian, at her orthopedic consultation, that 8 she quit work in 2004 to take care of her children. 9 ALJ The record supports this finding. Plaintiff disability was testified insurance entitled to Plaintiff’s that quit find At the administrative working (A.R. 32). benefits, that these affected 11 discredited 12 because Plaintiff continues to smoke, 13 that 14 throughout 15 keeping busy with household chores. 16 to 17 2003, due to she claimed that (A.R. 134). (A.R. 171). inconsistencies Plaintiff’s the on day, these Additionally, she The adversely credibility. Plaintiff’s despite rely credibility. in When Plaintiff applied however, 10 (A.R. 17, 32, 134, testimony claims Plaintiff factors regarding ALJ debilitating also asthma (A.R. 17, 32, 172),3 and noted that she testified in the requires that (A.R. 30). her she frequent spends her rest day The ALJ was entitled assessment of Plaintiff’s 18 Even 19 though Plaintiff only challenges the ALJ’s adverse 20 credibility findings based upon her poor work history, statements 21 concerning Vicodin usage, and daily activities, (Joint Stip. 2—10), 22 the ALJ’s decision to deny benefits was also based on the ALJ’s 23 findings about the lack of objective medical evidence, conservative 24 3 25 26 27 28 Plaintiff told Dr. Bilezikjian that she smokes two cigarettes per day, (A.R. 172), and her medical records also reflect that she smokes. (A.R. 219, 222, 232, 250, 263, 290, 313, 345, 371, 427). However, when asked by the ALJ whether she smokes, Plaintiff responded “[i]t’s not a big issue. I could quit. I could go a week without one or a month.” The ALJ was entitled to find, based on the facts, that Plaintiff was likely attempting to understate this detrimental fact. (A.R. 32). 14 1 treatment, and inconsistent statements, (A.R. 15—17). 2 even if this Court were to accept all of Plaintiff’s arguments, which 3 it 4 substantial evidence. does not, the ALJ’s decision would still be As a result, supported by 5 CONCLUSION 6 7 “If the ALJ’s credibility finding is supported by substantial 8 9 evidence in the record, we may not engage in second guessing.” 10 Thomas, 278 F.3d at 958-959. 11 and 12 regarding her subjective symptoms. 13 that Plaintiff failed to establish disability was properly based upon 14 substantial evidence. convincing reasons for Here, the ALJ provided specific, clear discounting Plaintiff’s statements Therefore, the ALJ’s decision 15 ORDER 16 17 18 19 For all of the foregoing reasons, this Court affirms decision of the Administrative Law Judge. 20 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 23 24 25 26 Dated: November 19, 2014. _/s/__________________________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 27 28 15 the

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