Teresa L Hall v. Carolyn W Colvin

Filing 18

MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Teresa L. Hall filed this action on March 14, 2014. (Dkt. No. 3.) Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. ( Dkt. Nos. 9, 10.) On October 23, 2014, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TERESA L. HALL, 12 Plaintiff, 13 14 15 v. CAROLYN W. COLVIN, Commissioner of Social Security 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) No. EDCV 14-420 AGR MEMORANDUM OPINION AND ORDER Plaintiff Teresa L. Hall filed this action on March 14, 2014. (Dkt. No. 3.) Pursuant 19 to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. 20 (Dkt. Nos. 9, 10.) On October 23, 2014, the parties filed a Joint Stipulation (“JS”) that 21 addressed the disputed issues. The court has taken the matter under submission 22 without oral argument. 23 24 25 26 27 28 Having reviewed the entire file, the court affirms the decision of the Commissioner. 1 I. 2 PROCEDURAL BACKGROUND 3 On October 4, 2010, Hall filed an application for supplemental security income 4 and alleged an onset date of November 7, 2005. Administrative Record (“AR”) 20, 157. 5 The application was denied initially and on reconsideration. AR 20, 72-73. Hall 6 requested a hearing before an Administrative Law Judge (“ALJ”). AR 89. On October 7 15, 2012, the ALJ conducted a hearing at which Hall and a vocational expert (“VE”) 8 testified. AR 34-71. The ALJ left the record open to give Hall the opportunity to submit 9 additional medical evidence. AR 40, 69. No additional evidence was submitted. AR 10 20. On December 13, 2012, the ALJ issued a decision denying benefits. AR 17-30. 11 On January 23, 2014, the Appeals Council denied the request for review. AR 1-3. This 12 action followed. 13 II. 14 STANDARD OF REVIEW 15 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 16 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 17 supported by substantial evidence, or if it is based upon the application of improper 18 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 19 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 20 “Substantial evidence” means “more than a mere scintilla but less than a 21 preponderance – it is such relevant evidence that a reasonable mind might accept as 22 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 23 substantial evidence exists to support the Commissioner’s decision, the court examines 24 the administrative record as a whole, considering adverse as well as supporting 25 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 26 one rational interpretation, the court must defer to the Commissioner’s decision. 27 Moncada, 60 F.3d at 523. 28 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 9 2d 333 (2003) (citation omitted). 10 B. The ALJ’s Findings 11 Following the five-step sequential analysis applicable to disability determinations, 12 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),1 the ALJ found that Hall 13 had the severe impairments of osteoporosis of the left ankle, congenital anomaly of the 14 distal tibia, mal-united fracture of the left leg, and carpal tunnel syndrome of the right 15 wrist. AR 22. Her impairments did not meet or equal a listing. AR 25. The ALJ found that Hall had the residual functional capacity (“RFC”) to perform 16 17 light work. She can lift and/or carry 20 pounds occasionally and 10 pounds frequently, 18 stand and/or walk for two hours in an eight-hour workday, and do frequent gross and 19 fine manipulations. A walker is necessary when walking long distances or over uneven 20 ground. AR 25. Hall is capable of performing past relevant work as a telemarketer/ 21 telephone solicitor. AR 29. 22 C. 23 Hall contends the ALJ erred in implicitly rejecting the opinion of Dr. To, an 24 25 26 27 28 Opinion of Examining Physician examining physician, regarding her need for a walker for all ambulation. 1 The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114. 3 1 An examining physician’s opinion constitutes substantial evidence when it is 2 based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 3 2007). An ALJ may reject an uncontradicted examining physician’s medical opinion 4 based on “clear and convincing reasons.” Carmickle v. Comm’r, 533 F.3d 1155, 1164 5 (9th Cir. 2008) (citation and quotation marks omitted). When an examining physician’s 6 opinion is contradicted, “it may be rejected for ‘specific and legitimate reasons that are 7 supported by substantial evidence in the record.’” Id. (citation omitted). The record contains Dr. To’s internal medicine evaluation report dated April 20, 8 9 2011. AR 251-56. Dr. To diagnosed hypertension, asthma diagnosed since childhood, 10 bilateral hand numbness and tingling, left ankle fracture without any proper orthopedic 11 treatment, and depression and anxiety. AR 255. Regarding the left ankle, Dr. To found 12 that Hall had a deformity with fracture healing in non-alignment position. She was in a 13 wheelchair. AR 253, 255. Dr. To opined that Hall could frequently push, pull, lift and/or 14 carry 20 pounds occasionally and 10 pounds frequently; stand and walk less than two 15 hours in an eight-hour workday; occasionally walk on uneven terrain, climb ladders or 16 work with heights; and frequently bend, kneel, stoop, crawl and crouch. AR 255-56. 17 She needed a walker for all ambulation, and was restricted from working with heavy and 18 moving machinery. AR 256. The ALJ gave significant but not full weight to Dr. To’s opinion. AR 27-29. The 19 20 ALJ also considered the opinions of Dr. Hoang (an orthopedist) and a State Agency 21 medical consultant.2 AR 29. Regarding the need for a walker, the ALJ adopted the 22 opinion of Dr. Hoang, who conducted an orthopedic examination on September 9, 2011. 23 AR 29, 274-78. Dr. Hoang found evidence that Hall used the left leg for ambulation 24 based on the absence of disuse atrophy of the left leg three years after the accident. 25 Dr. Hoang opined that a walker was medically necessary for long distance walking or on 26 2 27 28 As the ALJ noted, all three physicians found that Hall could perform less than the full range of light work, with some differences in the degree of functional limitations. AR 29, 251-56, 269-73, 274-78. 4 1 uneven ground.3 AR 278. The ALJ found the objective medical evidence supported Dr. 2 Hoang’s opinion regarding the use of a walker. AR 26, 29. Dr. To found lower 3 extremity pulses including dorsalis, pedal and posterior tibialis as 2+. AR 254. The 4 emergency department records from a visit in 2010 and a visit in 2012 do not mention 5 left leg issues. AR 27, 249-50, 300-01. Hall was reported to have 5/5 motor strength in 6 the upper and lower extremities in February 2012. AR 301. Moreover, any error was harmless. Tommasetti v. Astrue, 533 F.3d 1035, 1038 7 8 (9th Cir. 2008). In a hypothetical to the VE, the ALJ included a need for a walker for all 9 ambulation. AR 66. The VE testified that the hypothetical individual could do Hall’s 10 past work. AR 66-67. 11 D. Residual Functional Capacity 12 The RFC determination measures the claimant’s capacity to engage in basic 13 work activities. Bowen v. New York, 476 U.S. 467, 471, 106 S. Ct. 2022, 90 L. Ed. 2d 14 462 (1986). The RFC assessment is a determination of “the most [an individual] can 15 still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a). It is an administrative 16 finding, not a medical opinion. 20 C.F.R. § 404.1527(e)(2). The RFC takes into 17 account both exertional limitations and non-exertional limitations. “When there is 18 conflicting medical evidence, the Secretary must determine credibility and resolve the 19 conflict.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation omitted). Hall repeats her argument that the ALJ improperly omitted a requirement for use 20 21 of a walker for all ambulation. As discussed above, the ALJ properly rejected the 22 portion of Dr. To’s opinion requiring the use of a walker at all times, and any error was 23 harmless to the determination of disability. 24 25 26 27 28 3 The State Agency medical consultant did not require a walker for any purpose. AR 28-29, 269-73. 5 1 E. Listing 1.02A 2 The claimant bears the burden of demonstrating that her impairments are 3 equivalent to one of the listed impairments that are so severe as to preclude substantial 4 gainful activity. Bowen v. Yuckert, 482 U.S. 137, 141, 146 n.5, 107 S. Ct. 2287, 96 L. 5 Ed. 2d 119 (1987). “If the impairment meets or equals one of the listed impairments, 6 the claimant is conclusively presumed to be disabled. If the impairment is not one that 7 is conclusively presumed to be disabling, the evaluation proceeds to the fourth step.” 8 Id. at 141; see also Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 9 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 10 “The listings define impairments that would prevent an adult, regardless of his 11 age, education, or work experience, from performing any gainful activity, not just 12 ‘substantial gainful activity.’” Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 885, 107 13 L. Ed. 2d 967 (1990) (quoting 20 C.F.R. § 416.925(a)) (emphasis in original). “For a 14 claimant to show that his impairment matches a listing, it must meet all of the specified 15 medical criteria. An impairment that manifests only some of those criteria, no matter 16 how severely, does not qualify.” Id. at 530 (citation omitted) (emphasis in original). “To 17 equal a listed impairment, a claimant must establish symptoms, signs and laboratory 18 findings ‘at least equal in severity and duration’ to the characteristics of a relevant listed 19 impairment, or, if a claimant’s impairment is not listed, then to the listed impairment 20 ‘most like’ the claimant’s impairment.” Tackett, 180 F.3d at 1099 (quoting 20 C.F.R. § 21 404.1526) (emphasis in original). “‘Medical equivalence must be based on medical 22 findings.’ A generalized assertion of functional problems is not enough to establish 23 disability at step three.” Id. at 1100 (quoting 20 C.F.R. § 404.1526). “An ALJ must 24 evaluate the relevant evidence before concluding that a claimant’s impairments do not 25 meet or equal a listed impairment. A boilerplate finding is insufficient to support a 26 conclusion that a claimant’s impairment does not do so.” Lewis v. Apfel, 236 F.3d 503, 27 512 (9th Cir. 2001). 28 Listing 1.02 provides as follows: 6 1 Major dysfunction of a joint(s) (due to any cause): Characterized by gross 2 anatomical deformity (e.g., subluxation, contracture, bony or fibrous 3 ankylosis, instability) and chronic joint pain and stiffness with signs of 4 limitation of motion or other abnormal motion of the affected joint(s), and 5 findings on appropriate medically acceptable imaging of joint space 6 narrowing, bony destruction, or ankylosis of the affected joint(s). With: 7 8 A. Involvement of one major peripheral weight-bearing joint (i.e ., hip, knee, 9 or ankle), resulting in inability to ambulate effectively, as defined in 10 1.00B2b; 11 ... 12 B2b. What we mean by inability to ambulate effectively. Definition. 13 Inability to ambulate effectively means an extreme limitation of the ability to 14 walk; i.e., an impairment(s) that interferes very seriously with the 15 individual’s ability to independently initiate, sustain, or complete activities. 16 Ineffective ambulation is defined generally as having insufficient lower 17 extremity functioning (see 1.00J) to permit independent ambulation without 18 the use of a hand-held assistive device(s) that limits the functioning of both 19 upper extremities. (Listing 1.05C is an exception to this general definition 20 because the individual has the use of only one upper extremity due to 21 amputation of a hand.) 22 To ambulate effectively, individuals must be capable of sustaining a 23 reasonable walking pace over a sufficient distance to be able to carry out 24 activities of daily living. They must have the ability to travel without 25 companion assistance to and from a place of employment or school. 26 Therefore, examples of ineffective ambulation include, but are not limited 27 to, the inability to walk without the use of a walker, two crutches or two 28 canes, the inability to walk a block at a reasonable pace on rough or 7 1 uneven surfaces, the inability to use standard public transportation, the 2 inability to carry out routine ambulatory activities, such as shopping and 3 banking, and the inability to climb a few steps at a reasonable pace with 4 the use of a single hand rail. The ability to walk independently about one’s 5 home without the use of assistive devices does not, in and of itself, 6 constitute effective ambulation. 7 20 C.F.R. pt. 404, subpt. P., app. 1, § 1.02. 8 Hall argues she meets or equals the criteria of Listing 1.02A because Dr. To 9 opined that she would require a walker for all ambulation, and an April 2011 x-ray of her 10 left ankle revealed severe osteoporosis of the bony architecture and a congenital 11 anomaly of the distal tibia. 12 As discussed above, the ALJ properly rejected the portion of Dr. To’s opinion 13 requiring the use of a walker at all times. Hall’s x-ray of the left ankle showed “no 14 indication of gross fracture” with “well preserved” ankle mortice and “no abnormalities” 15 of the soft tissue. AR 257. Even assuming the x-ray showing severe osteoporosis of 16 the bony architecture satisfied the “bony destruction” prong of Listing 1.02, Hall did not 17 satisfy the requirements for “gross anatomical deformity.” 18 The record shows that the ALJ considered equivalence. AR 25-29. Hall relies on 19 Marcia v. Sullivan, 900 F.2d 172 (9th Cir. 1990), to support her contention that the ALJ 20 did not consider equivalence. Hall’s reliance on Marcia is misplaced. Hall did not offer 21 evidence that her impairments combined to equal a listed impairment. See Lewis, 236 22 F.3d at 514 (claimant did not satisfy burden to prove that his combined impairments 23 equaled a listed impairment when he “offered no theory, plausible or otherwise, as to 24 how his [impairments] combined to equal a listed impairment [. . . ] [n]or has he pointed 25 to evidence that shows that his combined impairments equal a listed impairment”); see 26 also Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (“ALJ is not required to 27 discuss the combined effects of a claimant’s impairments or compare them to any listing 28 8 1 in an equivalency determination, unless the claimant presents evidence in an effort to 2 establish equivalence”). The ALJ did not err. 3 IV. 4 ORDER 5 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 6 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the 7 Judgment herein on all parties or their counsel. 8 9 DATED: December 29, 2014 ALICIA G. ROSENBERG United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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