Javier Gomez Gonzalez v. Carolyn W. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff filed this action on December 23, 2016. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 8, 10.) On August 23, 2017, 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 JAVIER GOMEZ GONZALEZ, 12 13 14 15 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) EDCV 16-2624-AGR MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed this action on December 23, 2016. Pursuant to 28 U.S.C. § 636(c), 19 the parties consented to proceed before the magistrate judge. (Dkt. Nos. 8, 10.) On 20 August 23, 2017, the parties filed a Joint Stipulation (“JS”) that addressed the disputed 21 issues. The court has taken the matter under submission without oral argument. 22 Having reviewed the entire file, the court affirms the decision of the 23 24 25 26 27 28 Commissioner. 1 I. 2 PROCEDURAL BACKGROUND 3 On August 31, 2012, Gonzalez filed an application for supplemental security 4 income and alleged an onset date of January 1, 2012. Administrative Record (“AR”) 19. 5 The application was denied initially and on reconsideration. AR 19, 52, 79. Gonzalez 6 requested a hearing before an Administrative Law Judge (“ALJ”). On March 12, 2015, 7 the ALJ conducted a hearing at which Gonzalez and a vocational expert testified. AR 8 34-51. On April 24, 2015, the ALJ issued a decision denying benefits. AR 13-29. On 9 November 2, 2016, the Appeals Council denied the request for review. AR 1-5. This 10 action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 14 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of improper 16 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner’s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner’s decision. 25 Moncada, 60 F.3d at 523. 26 27 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 and quotation marks 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 13 Gonzalez had the severe impairments of diabetes mellitus, II, with neuropathy, 14 hypertension, tendonitis of the shoulders and low back pain. AR 21. Gonzalez had the 15 residual functional capacity (“RFC”) to perform light work except that he was limited to 16 frequent postural activities; was precluded from ladders, scaffolds or ropes; and should 17 avoid concentrated exposure to extreme temperatures. AR 24. He was unable to 18 perform past relevant work, but there were jobs that exist in significant numbers in the 19 national economy that he could perform such as hand packager, packing machine 20 operator and house cleaner. AR 27-28. 21 C. Medical Evidence 22 Gonzalez argues that the ALJ failed to consider his headaches and fatigue. AR 23 320-21, 346-47. Contrary to Gonzalez’s argument, the ALJ acknowledged Gonzalez’s 24 25 26 27 28 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 symptoms of headache and fatigue, and considered his function reports and headache 2 questionnaire as well as medical reports. AR 25-26. Gonzalez indicated on his 3 headache questionnaire that his daily headaches began in 1991 after brain surgery. 4 Triggers include drinking soda or eating fried foods. He is able to relieve his headaches 5 without medication if he relaxes and drinks water. AR 199. Otherwise, he takes Advil, 6 which relieves the headache “but then I can’t function with the meds.” His doctor did 7 not give him any restrictions due to headache. AR 200. 8 Gonzalez cited an emergency room visit in July 2012. The ER records indicate 9 he complained of high blood pressure and high sugar. AR 283, 287 (indicating blood 10 pressure of 159/97). His symptoms included a headache at 7/10. AR 283. He denied 11 dizziness or weakness. AR 285. Gonzalez was also diagnosed with dehydration. After 12 treatment, including fluid, Gonzalez reported feeling better and had a blood pressure of 13 125/84. AR 288-89. 14 In August 2012, Dr. Franco, Gonzalez’s primary physician, noted that Gonzalez 15 reported feeling weak and tired a couple of weeks ago and had gone to urgent care. 16 Gonzalez was found to have high glucose (550) and was prescribed medication. Now, 17 Gonzalez reported being much improved but still a little weak after changing his eating 18 habits and stopping his consumption of 6-10 beers per day. He reported being able to 19 do his usual activities with good exercise tolerance. AR 351. He had occasional 20 headaches. Dr. Franco prescribed medication and a low fat, low cholesterol diet. Dr. 21 Franco emphasized the importance of taking his medication daily and being careful with 22 his meals. AR 352. 23 In January and February 2013, Gonzalez complained of headache and requested 24 x-rays. AR 338, 340. Gonzalez reported taking his diabetes medication only on a “prn” 25 basis. Dr. Franco advised Gonzalez to take his medication as prescribed. AR 341. An 26 x-ray of his skull showed evidence of a previous craniectomy in the right posterior 27 28 4 1 parietal region. There was no evidence of fracture, erosion or destructive bony lesion. 2 AR 336. At the next visit, Gonzalez denied headache or fatigue. AR 333. 3 Dr. Franco’s medical record dated July 2013 notes that Gonzalez complained of 4 low back pain with diabetes neuropathy and fatigue. AR 320. Gonzalez had 5 tenderness to palpation at the midline with bilateral paraspinal muscle spasms at L3-S1. 6 His range of motion was limited secondary to pain, but his motor strength was 5/5 and 7 his diabetic foot exam was normal. Gonzalez was diagnosed with diabetes, lumbar 8 sprain and strain, and other conditions. He was referred to orthopedic surgery for his 9 chronic low back pain. AR 320-21. An x-ray of the lumbar spine showed vertebral 10 bodies normal in height. There was moderate disc space narrowing and narrowed, 11 sclerotic apophyseal joints at L5-S1. AR 325. Subsequent medical records in 12 December 2013 do not indicate complaints of headache. AR 371, 374, 377. In 13 February 2015, Gonzalez reported that he had not been taking his medications for three 14 to four weeks, had not taken his blood pressure medication for two weeks, and had not 15 been on his diet plan. He complained of fatigue. AR 368. Dr. Franco prescribed 16 medication and advised Gonzalez to take his medication daily. Dr. Franco also advised 17 that the diet plan is needed and must be followed. AR 369-70. 18 Gonzalez has not shown error by the ALJ. 19 D. 20 “To determine whether a claimant’s testimony regarding subjective pain or Credibility 21 symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. 22 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). At step one, “the ALJ must determine 23 whether the claimant has presented objective medical evidence of an underlying 24 impairment ‘which could reasonably be expected to produce the pain or other 25 symptoms alleged.’” Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) 26 (en banc)). The ALJ found that Gonzalez’s medically determinable impairments could 27 reasonably be expected to cause the alleged symptoms. AR 25. 28 5 Second, when an ALJ concludes that a claimant is not malingering and has 1 2 satisfied the first step, “the ALJ may ‘reject the claimant’s testimony about the severity 3 of her symptoms only by offering specific, clear and convincing reasons for doing so.’” 4 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation omitted); Burrell v. 5 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). “A finding that a claimant’s testimony is 6 not credible ‘must be sufficiently specific to allow a reviewing court to conclude the 7 adjudicator rejected the claimant’s testimony on permissible grounds and did not 8 arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter, 806 F.3d at 9 493 (citation omitted). “‘General findings are insufficient; rather, the ALJ must identify 10 what testimony is not credible and what evidence undermines the claimant’s 11 complaints.’” Id. (citation omitted). The ALJ found that Gonzalez’s statements were “not entirely credible.” AR 25. 12 13 The ALJ relied primarily on two reasons: (1) the objective medical evidence; and (2) 14 conservative treatment. The ALJ’s analysis of the objective medical evidence is supported by substantial 15 16 evidence, although the ALJ may not rely on this reason alone. Rollins v. Massanari, 17 261 F.3d 853, 857 (9th Cir. 2001). Gonzalez does not contend otherwise. The ALJ 18 reviewed his medical records including x-ray reports and test results. AR 25-26. The ALJ may rely on conservative treatment to discount a claimant’s statements. 19 20 Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). Gonzalez admitted that he treats 21 headache with either water or Advil. Id. (treatment with over-the-counter medication 22 sufficient to discount claimant’s allegations of severity). The medical records evidence 23 that Gonzalez’s condition was much improved on those occasions when he was 24 compliant with his medications and diet.2 AR 351 (noting Gonzalez generally able to do 25 26 27 28 2 Gonzalez reported several times that he was not compliant with medications and/or diet. AR 287 (7/2012, reports taking meds from neighbor); AR 320 (7/2013); AR 341 (1/2013); AR 368 (2/2015); AR 374 (12/2013). However, this does not bolster his credibility or disability. See Young v. Comm’r, 594 Fed. Appx. 914, 917 (9th Cir. 2014); 6 1 usual activities and good exercise tolerance); see Tommasetti v. Astrue, 533 F.3d 1035, 2 1039-40 (9th Cir. 2008) (favorable response to conservative treatment properly used to 3 discount subjective testimony about severity of disability). 4 IV. 5 ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is 6 7 affirmed. 8 9 10 DATED: August 29, 2017 ALICIA G. ROSENBERG United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Belton v. Berryhill, 2017 U.S. Dist. LEXIS 127419, *27 (C.D. Cal. Aug. 10, 2017). 7

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