Leanna May Burgum v. Carolyn W. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. Plaintiff Leanna May Burgum ("Plaintiff") challenges the Commissioner's denial of her application for a period of disability and disability insurance benefits. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 3 (gr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LEANNA MAY BURGUM,

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Plaintiff,

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Case No. CV 16-01510-RAO

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

MEMORANDUM OPINION AND
ORDER

Defendant.

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I.

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INTRODUCTION
Plaintiff Leanna May Burgum (“Plaintiff”) challenges the Commissioner’s

denial of her application for a period of disability and disability insurance benefits.
For the reasons stated below, the decision of the Commissioner is AFFIRMED.
II.

PROCEEDINGS BELOW
On December 14, 2013, Plaintiff applied for disability insurance benefits

(DIB), alleging onset of disability on December 1, 2013. (Administrative Record
(“AR”) 159).

Her application was denied on initial review, and upon

reconsideration, after which Plaintiff requested a hearing before an administrative
law judge (“ALJ”). (Id. at 77, 86, 90.) On August 26, 2015, the ALJ held a hearing

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at which Plaintiff, represented by counsel, testified. (Id. at 29-54.) An impartial

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vocational expert also testified. (Id. at 36-38, 49-53.) On October 8, 2015, the ALJ

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found that Plaintiff had not been under a disability, pursuant to the Social Security

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Act,1 from the alleged onset date through the decision date. (Id. at 23.) The ALJ’s

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decision became the Commissioner’s final decision when the Appeals Council

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denied Plaintiff’s request for review. (Id. at 1.) Plaintiff filed this action on July

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11, 2016. (Dkt. No. 1.)

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The ALJ followed a five-step sequential evaluation process to assess whether

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Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821,

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828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged

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in substantial gainful activity since December 1, 2013, the alleged onset date

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(“AOD”). (AR 15.) At step two, the ALJ found that Plaintiff has the severe

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impairments of arthritis in bilateral hands, degenerative joint disease in bilateral

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knees status post joint replacement, chronic obstructive pulmonary disease, and

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obesity. (Id.) At step three, the ALJ found that Plaintiff “does not have an

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impairment or combination of impairments that meets or medically equals the

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severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix

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1.” (Id. at 17.)
Before proceeding to step four, the ALJ found that Plaintiff has the residual

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functional capacity (“RFC”) to:

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Perform a range of light work as defined in 20 CFR 404.1567(b).
Specifically, she can lift and/or carry 20 pounds occasionally and 10
pounds frequently; she can stand and/or walk for four hours of an
eight hour workday for 30 minutes at a time, then would need to rest
at a workstation before standing and walking again; she has no
limitations with sitting; pushing and/or pulling is unlimited other than

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Persons are “disabled” for purposes of receiving Social Security benefits if they
are unable to engage in any substantial gainful activity owing to a physical or
mental impairment expected to result in death, or which has lasted or is expected to
last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A).
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for lifting and carrying; she can do frequent handling and fingering
with her bilateral upper extremities; she should avoid concentrated
exposure to respiratory irritants; she can frequently bend and/or stoop;
she can occasionally climb ramps and/or stairs; she cannot climb
ladders, ropes, or scaffolds; and, she can occasionally crouch and/or
crawl.

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(AR 17.)

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At step four, based on Plaintiff’s RFC and the VE’s opinion, the ALJ found

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that Plaintiff is capable of performing past relevant work as an office manager,

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administrative assistant, and contract clerk. (AR 22-23.)

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III.

STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s

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decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are

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supported by substantial evidence, and if the proper legal standards were applied.

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Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’

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means more than a mere scintilla, but less than a preponderance; it is such relevant

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evidence as a reasonable person might accept as adequate to support a conclusion.”

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc.

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Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial

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evidence requirement “by setting out a detailed and thorough summary of the facts

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and conflicting clinical evidence, stating his interpretation thereof, and making

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findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted).

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“[T]he Commissioner’s decision cannot be affirmed simply by isolating a

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specific quantum of supporting evidence. Rather, a court must consider the record

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as a whole, weighing both evidence that supports and evidence that detracts from

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the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.

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2001) (citations and internal quotations omitted). “‘Where evidence is susceptible

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to more than one rational interpretation,’ the ALJ’s decision should be upheld.”

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Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v.

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Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins, 466 F.3d at 882
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(“If the evidence can support either affirming or reversing the ALJ’s conclusion, we

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may not substitute our judgment for that of the ALJ.”). The Court may review only

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“the reasons provided by the ALJ in the disability determination and may not affirm

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the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630

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(9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).

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IV.

DISCUSSION

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Plaintiff contends that the ALJ: (1) failed to properly consider the relevant

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medical evidence of record in assessing Plaintiff’s RFC; and (2) failed to properly

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consider Plaintiff’s subjective complaints and properly assess her credibility. (Joint

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Stipulation (“Joint Stip.”) at 3.)

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A.

The ALJ’s RFC Assessment is Supported by Substantial Evidence

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Plaintiff contends that the ALJ’s RFC is not supported by substantial

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evidence because the ALJ failed to consider all relevant medical evidence of record,

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including medical evidence which contradicts and is inconsistent with the ALJ’s

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RFC assessment. Joint Stip. at 4. Specifically, Plaintiff cites to treatment records

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from Dr. Ahluwalia, designated as Exhibit 15F in the administrative record (AR

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364-402), which were scanned into the record prior to the administrative hearing,

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but are not discussed in the ALJ’s decision. Id.

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As described in the Joint Stipulation, Plaintiff submitted additional medical

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records to the Appeals Council which were not before the ALJ. The Appeals

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Council denied review of the ALJ’s decision. The Commissioner does not dispute

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that the Court must consider Dr. Ahluwalia’s treatment notes in Exhibit 15F in

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determining whether the ALJ’s decision is supported by substantial evidence. See

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Joint Stip. at 8; see also Brewes v. Comm’r of Social Sec. Admin., 682 F.3d 1157,

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1162-63 (9th Cir. 2012) (where Appeals Council considers new evidence in

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denying review of the ALJ’s decision, the new evidence becomes part of the

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administrative record for purposes of the district court’s analysis in determining

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whether the ALJ’s decision is supported by substantial evidence). Accordingly,
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this Court considers the record as a whole, including the treatment records in

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Exhibit 15F, in determining whether the ALJ’s RFC assessment is supported by

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substantial evidence. The Court concludes that it is.
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Applicable Legal Standards

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In making an RFC determination, the ALJ must consider all the relevant

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evidence in the record, including medical records, lay evidence, and the effects of

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symptoms, including pain, reasonably attributable to medically determinable

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impairments. See Robbins, 466 F.3d at 883 (citing Soc. Sec. Ruling 96-8p (July 2,

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1996), 1996 WL 374184, at *5). An ALJ’s determination of a claimant’s RFC

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must be affirmed “if the ALJ applied the proper legal standard and his decision is

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supported by substantial evidence.” Bayliss v. Barnhart, 427 F.2d 1211, 1217 (9th

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Cir. 2005).

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2.

Discussion

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In assessing Plaintiff’s RFC, the ALJ properly took into account limitations

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for which there was record support, specifically incorporating limitations based on

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treatment history of Plaintiff’s knees and hands. With respect to Plaintiff’s knees,

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the ALJ determined that Plaintiff can “stand and/or walk for four hours of an eight-

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hour workday for 30 minutes at a time, then would need to rest at the workstation

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before standing and walking again and occasional crouching and crawling.” AR

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19. These restrictions were based on medical records from a walk-in clinic that

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treated Plaintiff (Exhibit 4F).

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trigger finger, the ALJ similarly incorporated limitations based on treatment

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history, including physical therapy, by assessing that Plaintiff was “limited [to]

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light exertional work, frequent handling and fingering with her bilateral upper

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extremities, and precluded from climbing ladders, ropes, or scaffolds.” Id. at 20.

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These limitations were also based on evidence in the record before the ALJ

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(Exhibits 1F, 2F, 4F, 5F, 8F, 9F). Taking into account all of the record evidence,

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the ALJ had substantial evidence to conclude that Plaintiff was capable of

With respect to Plaintiff’s hands, including her

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performing light work as set forth in the RFC. See Batson v. Comm’r of Soc. Sec.

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Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (“[T]he Commissioner’s findings are

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upheld if supported by inferences reasonably drawn from the record[.]).2

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Plaintiff contends that the additional evidence contained in Exhibit 15F does

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not support the ALJ’s RFC assessment of light work and points to Dr. Ahluwalia’s

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findings of osteoarthritis, Plaintiff’s reports of pain and inflammation in her hands

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and knees, and x-rays of Plaintiff’s knees which revealed “moderate degenerative

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medial joint space narrowing.” (AR 371-72, 374-75, 382, 390). However, the

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Court’s review of Dr. Ahluwalia’s treatment records in Exhibit 15F finds that they

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are generally consistent with other record evidence and provide no additional

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information that undermines the legal sufficiency of the ALJ’s RFC assessment.

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The treatment records in Exhibit 15F that pertain to the ALJ’s RFC assessment

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reveal findings of mild osteoporosis (AR 367-70) and generalized osteoarthrosis

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(AR 382). While certain treatment records indicate moderate degenerative findings

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with respect to Plaintiff’s knees (AR 374-75) and “Heberden’s and Bouchard’s

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nodes hands” (AR 382), this medical evidence does not significantly undermine or

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contradict the otherwise consistent findings of mild osteoporosis that are found

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throughout the medical record.3

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Notably, at the administrative hearing, Plaintiff’s attorney characterized most of
the evidence regarding Plaintiff’s arthritis in her hands as “mild” and indicated that
the medical records, including x-rays, were consistent in making mild or minimal
findings from 2011 through 2014. AR 43-44 (“[m]ost [of the objective evidence] is
documented as mild”). This characterization of mild findings is consistent with the
Court’s own review of the medical records regarding Plaintiff’s hand impairments,
as well as knee impairments.
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In challenging the ALJ’s RFC assessment, Plaintiff also argues, in a conclusory
manner, that the ALJ committed error in finding Plaintiff’s right eye impairment,
hepatitis C, neuropathy, GURD, and irritable bowel syndrome to be non-severe
impairments. Joint Stip. at 6. The Court does not address these arguments because
Plaintiff has failed to argue these issues with any specificity in the Joint Stipulation.
See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir.
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B.

The ALJ Did Not Err In Evaluating Plaintiff’s Subjective

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Complaints

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Applicable Legal Standards

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“In assessing the credibility of a claimant’s testimony regarding subjective

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pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina

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v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d

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586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has

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presented objective medical evidence of an underlying impairment which could

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reasonably be expected to produce the pain or other symptoms alleged.” Treichler

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v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting

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Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the

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ALJ does not find evidence of malingering, the ALJ must provide specific, clear

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and convincing reasons for rejecting a claimant’s testimony regarding the severity

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of his symptoms. Id. The ALJ must identify what testimony was found not

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credible and explain what evidence undermines that testimony. Holohan, 246 F.3d

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at 1208. “General findings are insufficient.” Lester, 81 F.3d at 834.

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2.

Discussion

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“After careful consideration of the evidence,” the ALJ found that Plaintiff’s

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“medically determinable impairments could reasonably be expected to cause the

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alleged symptoms,” but found that Plaintiff’s “statements concerning the intensity,

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persistence and limiting effects of these symptoms are not entirely credible for the

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reasons explained in this decision.” (AR 19.) In reaching this determination, the

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ALJ relied on the following reasons: (1) lack of supporting objective evidence; and

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(2) Plaintiff’s activities of daily living. (Id. at 18-19.)

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First, the ALJ determined stated that “the medical record . . . casts doubt on
the credibility of [Plaintiff’s] allegations.”

(AR 18.)

The ALJ observed that

2008) (“We do not address this finding [by the ALJ] because [claimant] failed to
argue this issue with any specificity in his briefing.”).
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“[a]lthough [Plaintiff] alleged severe and disabling pain, the medical record is

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relatively sparse. [Plaintiff] has not sought the type of treatment one would expect

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of a disabled individual.

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impairments, one might expect to see a greater level of intervention and/or more

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aggressive treatment options.

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available indicate a rather mild and conservative course of treatment in the form of

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medication, minimal physical therapy, and minimal finger surgery. This suggests

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that [Plaintiff’s] symptoms may not be as severe as she alleged.” (Id.)

Given the allegations of such severe and disabling

On the contrary, what few medical records are

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Next, the ALJ noted that Plaintiff “is able to perform her activities of daily

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living with minimal difficulty. She reported she cares for her personal needs, cares

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for her dogs, uses a computer for email and Facebook, prepares daily meals, dusts,

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vacuums, cleans the bathroom, goes grocery shopping weekly, and attends outdoor

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concerts in the summer.” (AR 18.) “Some of the physical and mental abilities and

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social interactions required in order to perform these activities are the same as those

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necessary for obtaining and maintaining employment.

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participate in such activities undermines her credibility regarding allegations of

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disabling functional limitations.” (Id.)

[Plaintiff’s] ability to

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The Court’s review of the evidence of record finds that the ALJ’s

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observations regarding Plaintiff’s credibility are supported by clear and convincing

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reasons. First, the ALJ’s determination that Plaintiff’s relatively sparse treatment

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records suggested that Plaintiff’s symptoms were not as severe as alleged was a

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sufficient reason for discounting Plaintiff’s credibility. See Orteza v. Shalala, 50

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F.3d 748, 750 (9th Cir. 1995) (permissible for ALJ to consider “the unexplained

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absence of treatment” in determining credibility); see also Parra v. Astrue, 481

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F.3d 742, 750-51 (9th Cir. 2007) (evidence of conservative treatment is sufficient to

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discount a claimant’s testimony regarding severity of an impairment); see also

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Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting plaintiff’s

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complaint “that she experienced pain approaching the highest level imaginable” as
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“inconsistent with the ‘minimal, conservative treatment’ that she received”).

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Second, the ALJ’s characterization of Plaintiff’s daily activities was

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supported by substantial evidence. See Burch, 400 F.3d at 681. Plaintiff’s own

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function report, which stated that she could prepare meals with help, do

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housekeeping (dusting, vacuuming, cleaning bathroom), go grocery shopping,

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manage funds and pay bills, and use Facebook, conflicted with Plaintiff’s hearing

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testimony. Compare AR 182-84 to AR 38-39, 46; see Young v. Colvin, 610 F.

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App’x 615, 615-16 (9th Cir. 2015) (affirming denial of benefits where ALJ’s

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characterization of claimant’s daily activities of attending to self-care, driving a car,

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grocery shopping, organizing her household, using a computer, and managing her

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finances was supported by substantial evidence).

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reasonable person could conclude that her activities of daily living” are in any way

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“consistent with or supportive of the ability to perform her past relevant work….”

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Joint Stip. at 14. Although the evidence of Plaintiff’s daily activities may be

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interpreted differently, and more favorably to Plaintiff, the ALJ’s interpretation was

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rational, and must be upheld “where the evidence is susceptible to more than one

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rational interpretation.” Burch, 400 F.3d at 680-81 (citing Magallanes v. Bowen,

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881 F.2d 747, 750 (9th Cir. 1989) (upholding ALJ’s determination that claimant’s

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daily

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notwithstanding that evidence was susceptible to more than one rational

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interpretation).

activities

suggested

claimant

was

“quite

Plaintiff contends that “no

functional”

as

rational,

Accordingly, the Court concludes that the ALJ’s credibility finding is legally

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valid and supported by substantial evidence.

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V.

CONCLUSION
IT IS ORDERED that Judgment shall be entered AFFIRMING the decision

of the Commissioner denying benefits.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this
Order and the Judgment on counsel for both parties.

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DATED: August 31, 2017
ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE

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NOTICE

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THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,
LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.

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