Maria Del Rosario Elizarraraz v. Nancy A. Berryhill

Filing 42

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. IT IS ORDERED that the decision of the Commissioner shall be AFFIRMED. Judgment shall be entered consistent with this order. (es)

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1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIA DEL ROSARIO E., 12 13 14 15 Case No. 5:19-cv-00982-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. ANDREW SAUL, Commissioner of Social Security,1 Defendant. 16 17 I. 18 BACKGROUND 19 In December 2014, Plaintiff Maria Del Rosario E. (“Plaintiff”) applied for 20 Title II disability benefits alleging an onset date of March 13, 2013 (age 42), the 21 date on which she fell at work and broke her left kneecap.2 Administrative Record 22 (“AR”) 56, 59, 224. On May 7, 2018, an Administrative Law Judge (“ALJ”) 23 conducted a hearing at which Plaintiff, who was represented by counsel, appeared 24 25 26 27 28 1 Andrew Saul is substituted for his predecessor, Nancy Berryhill. 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 2 While Plaintiff testified that she has not worked since March 2013 (AR 58), in August 2014, she told Kaiser that “she has a lot of anxiety recently at work.” AR 423, 683. 1 1 and testified along with a vocational expert (“VE”). AR 45-85. On June 20, 2018, 2 the ALJ issued an unfavorable decision. AR 26-38. 3 The ALJ found that Plaintiff’s last date insured was March 31, 2015. AR 4 29. The ALJ found that Plaintiff suffered from severe impairments affecting her 5 knees and lower back but had no severe mental impairments.3 AR 29-30. Plaintiff 6 had the residual functional capacity (“RFC”) to perform a reduced range of 7 sedentary work. AR 31. Based on this RFC and the VE’s testimony, the ALJ 8 found that Plaintiff could work as a bench assembler, table worker, or surveillance 9 monitor (collectively, the “Alternative Jobs”). AR 38. The ALJ concluded that 10 Plaintiff was not disabled. Id. 11 II. 12 ISSUES PRESENTED 13 14 15 Issue One: Whether the ALJ erred in finding that Plaintiff did not meet or equal Listing 1.02(A). (Dkt. 41, Joint Stipulation [“JS”] at 4-6, 8-17.)4 Issue Two: Whether the ALJ erred in finding that Plaintiff could perform 16 the Alternative Jobs, because the ALJ failed to credit Plaintiff’s testimony and 17 overstated her RFC. (Id. at 4, 17-18, 21.) 18 19 20 21 22 23 24 25 26 27 28 3 Plaintiff had alleged that she only went outside for doctors’ appointments due to her anxiety (AR 274) and that she could not work due to anxiety and depression (AR 252). She also testified that she was “very forgetful” and had “brain fogs.” AR 76. A psychiatric consultative examiner concluded in 2015 that she had no difficulty in concentration, persistence and pace and only mild difficulties focusing and maintaining attention, and that she was intellectually and psychologically capable of performing activities of daily living. AR 496. Plaintiff does not challenge the ALJ’s mental impairment findings on appeal. 4 Plaintiff’s counsel filed the “final” version of the Joint Stipulation, which included Plaintiff’s reply, on February 3, 2021. (Dkt. 41.) The Court has considered these arguments herein. 2 1 III. 2 DISCUSSION 3 ISSUE ONE: Listing 1.02(A). 4 5 1. The Requirements of Listing 1.02(A). Plaintiff bears the burden to prove that she had an impairment that met or 6 equaled one of the Commissioner’s listed impairments, i.e., a condition so severe 7 that it is per se disabling at Step Three of the sequential analysis. See 20 C.F.R. 8 § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Subpt. P, App. 1. 9 Listing 1.02(A) is one of the listings describing impairments of the 10 musculoskeletal system. To meet Listing 1.02(A), Plaintiff must satisfy all of the 11 following four conditions: 12 1.02 Major dysfunction of a joint(s) (due to any cause): Characterized 13 by [1] gross anatomical deformity (e.g., subluxation, contracture, 14 bony or fibrous ankylosis5), instability and [2] chronic joint pain and 15 stiffness with signs of limitation of motion or other abnormal motion 16 of the affected joint(s), and [3] findings on appropriate medically 17 acceptable imaging of joint space narrowing, bony destruction, or 18 ankyloses of the affected joint(s). With: 19 A. Involvement of one major peripheral weight-bearing joint 20 (i.e., hip, knee, or ankle), resulting in [4] inability to ambulate 21 effectively, as defined in 1.00B2b. . . . 22 20 C.F.R. Part 404, Subpt. P, App. 1, Listing 1.02(A). 23 24 25 26 27 28 5 Based on the Court’s research, “subluxation” refers to an incomplete or partial dislocation of a joint or organ; “contracture” refers to a shortening or hardening of a muscle or joint; “fibrous ankylosis” is a fibrous connective tissue process which results in decreased range of motion, with symptoms including osseous tissue fusing two bones together, reducing mobility; and “joint instability” happens when tissues - such as muscles, ligaments, and bones - weaken. 3 1 2 The “inability to ambulate effectively” is defined in the cited regulation as follows: 3 (1) Definition. Inability to ambulate effectively means an 4 extreme limitation of the ability to walk; i.e., an impairment(s) that 5 interferes very seriously with the individual’s ability to independently 6 initiate, sustain, or complete activities. Ineffective ambulation is 7 defined generally as having insufficient lower extremity functioning 8 (see 1.00(J)) to permit independent ambulation without the use of a 9 hand-held assistive device(s) that limits the functioning of both upper 10 extremities…. 11 (2) To ambulate effectively, individuals must be capable of 12 sustaining a reasonable walking pace over a sufficient distance to be 13 able to carry out activities of daily living. They must have the ability 14 to travel without companion assistance to and from a place of 15 employment or school. Therefore, examples of ineffective 16 ambulation include, but are not limited to, the inability to walk 17 without the use of a walker, two crutches or two canes, the inability 18 to walk a block at a reasonable pace on rough or uneven surfaces, the 19 inability to use standard public transportation, the inability to carry 20 out routine ambulatory activities, such as shopping and banking, and 21 the inability to climb a few steps at a reasonable pace with the use of 22 a single hand rail. The ability to walk independently about one’s 23 home without the use of assistive devices does not, in and of itself, 24 constitute effective ambulation. 25 20 C.F.R. Pt. 404, Subpt. P. App. 1, Listing 1.00(B)(2)(b)(1)-(2). Thus, the 26 regulations provide a “general definition” in Listing 1.00(B)(2)(b)(1) followed in 27 Listing 1.00(B)(2)(b)(2) by several examples of situations that may satisfy that 28 definition. 4 1 2 2. The ALJ’s Findings. The ALJ considered whether Plaintiff’s medically determinable physical 3 impairments met or equaled several Listings including those under 1.02. AR 31. 4 The ALJ concluded that they did not, citing reasons including “there is no 5 objective medical evidence to support the claimant’s inability to ambulate 6 effectively ….” Id. 7 The ALJ discussed a January 2017 Qualified Medical Evaluation in 8 Plaintiff’s workers’ compensation case that resulted in an opinion by Lee B. Silver, 9 M.D., that Plaintiff could return to work if restricted against lifting more than 10 10 pounds, continuous standing/walking, and repetitive postural activities. AR 34 11 (citing AR 940). The ALJ gave “significant weight” to Dr. Silver’s opinion. AR 12 35. The ALJ “substantial weight” to a “consistent” November 2017 opinion from 13 Stanley G. Katz, M.D., who opined that Plaintiff could do sedentary work with a 14 sit/stand option and a cane. AR 35 (citing AR 954). The ALJ also discussed 15 opinions by consultative examiner Anh Tat Hoang, M.D., and two state agency 16 medical consultants, each of whom assessed Plaintiff with fewer restrictions than 17 those later assessed by the ALJ. AR 35, citing AR 102 (Dr. Chu’s RFC for light 18 work), AR 117 (Dr. Singh’s RFC for light work with a sit/stand option), AR 501- 19 04 (Dr. Hoang’s report). 20 21 3. Analysis of Claimed Error. Plaintiff’s argument, while unclear, appears to be that (1) she could not 22 ambulate effectively because she used a cane, and (2) the ALJ should not have 23 relied on Dr. Hoang’s opinion that Plaintiff could ambulate without a cane, 24 because Dr. Hoang “performed no x-rays and reviewed no records” and offered 25 opinions “inconsistent with all of Plaintiff’s treating physicians.” (JS at 6, 11.) 26 This argument fails for multiple reasons, the most salient being that Plaintiff 27 has not shown that she was incapable of sustaining a reasonable walking pace over 28 a sufficient distance to be able to carry out activities of daily living, i.e., the 5 1 regulatory definition of effective ambulation. In May 2015, Plaintiff admitted that 2 she could walk a limited distance, and the physician who examined her 3 recommended only ointments and referral to a knee specialist. AR 1014, 1017. In 4 July 2015, she reported that she was not using her cane as much as she used to and 5 was moving around better. AR 766. On examination the same year, she had a 6 normal gait without the use of ambulatory devices, with Dr Hoang opining that her 7 assistive device was not medically necessary. AR 504. As discussed above, 8 several doctors opined that she was less limited than the RFC assessed by the ALJ. 9 Indeed, in 2014, she admitted to exercising four times a week for over thirty 10 minutes at a time. AR 653; see also AR 652 (“The patient exercises 420 minutes 11 per week at a moderate to strenuous level.”). Despite her suggestion that they 12 exist, Plaintiff cites to no medical opinions that she could not ambulate effectively 13 after recovering from surgery for her knee injury. Furthermore, even if the 14 evidence supported Plaintiff’s assertion that she needs a cane to ambulate 15 effectively, that alone (given the rest of the record) would not have risen to the 16 level of Listing 1.02. See Woodson v. Colvin, No. 15-03993, 2016 WL 1170862, 17 at *7 (C.D. Cal. Mar. 23, 2016) (affirming ALJ’s finding that plaintiff did not meet 18 Listing 1.02 despite her use of a cane, given the other evidence in the record that 19 she was functional and able to ambulate).6 She therefore has not met her burden of 20 proof that she meets Listing 1.02. 21 22 ISSUE TWO: Plaintiff’s Subjective Symptom Testimony. Plaintiff contends that the ALJ’s RFC determination should have accounted 23 24 25 26 27 28 6 To the extent Plaintiff argues the ALJ was required to find she met Listing 1.02 based on the RFC determination that she could not walk on uneven terrain, courts have routinely rejected such arguments. See, e.g., Moreno v. Astrue, 444 Fed. App’x 163, 164 (9th Cir. 2011); Hernandez v. Colvin, 2013 WL 1401368, at *4 (C.D. Cal. Apr. 4, 2013); Delavara v. Astrue, 2013 WL 645626, at *5 (C.D. Cal. Feb. 20, 2013). 6 1 for Plaintiff’s testimony that she needed a cane to ambulate.7 (JS at 17.) She 2 argues that the ALJ failed to give sufficient reasons for rejecting Plaintiff’s 3 testimony in this regard. (Id. at 18.) 4 5 1. Law The Ninth Circuit has “established a two-step analysis for determining the 6 extent to which a claimant’s symptom testimony must be credited.” Trevizo v. 7 Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “First, the ALJ must determine 8 whether the claimant has presented objective medical evidence of an underlying 9 impairment ‘which could reasonably be expected to produce the pain or other 10 symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) 11 (citation omitted). “Second, if the claimant meets the first test, and there is no 12 evidence of malingering, ‘the ALJ can reject the claimant’s testimony about the 13 severity of her symptoms only by offering specific, clear and convincing reasons 14 for doing so.’” Id. (citation omitted). If the ALJ’s assessment “is supported by 15 substantial evidence in the record, [courts] may not engage in second-guessing.” 16 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 17 18 2. Summary of Plaintiff’s Testimony. In January 2015, Plaintiff completed an Adult Function Report. AR 271. 19 She reported that she was “unable to stand or walk for any significant amount of 20 time” and needed to elevate her left leg when sitting. Id.; AR 276 (“can only walk 21 5 min.” without legs shaking). She used a cane and brace daily. AR 277. She also 22 daily spent 6-10 minutes preparing meals like oatmeal or sandwiches. AR 273. 23 24 25 26 27 28 7 Plaintiff also implies that she testified that she would be absent from work or off-task so frequently as to preclude employment. (See JS at 17.) Although the ALJ and Plaintiff’s attorney asked the VE about off-task and absence limitations, see AR 84, the ALJ made no off-task finding. To the extent Plaintiff argues that her pain makes it impossible to focus on or attend work, the discussion herein sets out the ALJ’s clear and convincing reasons for discounting her testimony. 7 1 She would spend 15 minutes per day doing household chores like wiping the 2 counters, sweeping, or washing dishes. Id. She could drive to “familiar places” 3 and shop in stores with her husband. AR 274. 4 In May 2018, Plaintiff testified that ever since her March 2013 fall at work, 5 she had been unable to walk without knee braces and an assistive device such as a 6 cane. AR 71-72. She needed the knee braces for stability; her knee could “go 7 either forward or backward” and she had “no control over that.” AR 78. She 8 sprained both ankles when she fell in March 2013, and they were still sore in 2018. 9 AR 73, 78. Her hips were also sore, and her left hip wanted “to pop out of [its] 10 socket.” AR 77. Because of hip pain, she could not “walk straight” even on good 11 days, and on bad days she could not move. AR 78. 12 She could only stand or walk for 10-15 minutes at a time, and she could only 13 do this 2-3 times per day on a good day. AR 68-69. On bad days, she stayed in 14 bed. AR 68. She could only sit for 10-15 minutes before experiencing numbness 15 and her tailbone burning like fire. AR 69. She testified that she could only use one 16 arm for lifting, since she always needed to hold on to something to avoid falling. 17 AR 70-71. She estimated that she could lift at most five pounds. Id. 18 3. The ALJ’s Evaluation of Plaintiff’s Testimony. 19 After reciting the two-step process, the ALJ found that Plaintiff’s 20 “statements concerning the intensity, persistence, and limiting effects of [her] 21 symptoms are not entirely consistent with the medical evidence and other evidence 22 in the record for the reasons explained in this decision.” AR 32. The ALJ then 23 explained that Plaintiff’s subjective symptom testimony was “not supported by the 24 objective medical evidence.” Id. Among other evidence, the ALJ cited Dr. 25 Hoang’s physical examination which observed that Plaintiff had a full range of 26 motion in her left knee, a normal gait without using an assistive device, the ability 27 to heel-to-toe walk, a normal examination of her lower extremities, and negative 28 straight-leg raising tests. AR 34 (citing AR 502-03); see also AR 684 (“gait 8 1 normal” in August 2014). 2 The ALJ also noted that Plaintiff had reported her symptoms inconsistently. 3 While Plaintiff testified in May 2018 that she needed a cane to walk, in May 2015 4 at an initial consultation with Ultimate Sports and Orthopaedics, she reported that 5 she experienced knee pain when “squatting” or climbing stairs, but she was “able 6 to walk a limited distance.” AR 34 (citing AR 1014). In July 2015, she told 7 treating physician Jack Akmakjian, M.D., that she was “not using her cane as 8 much” and could “move around better now,” with medication decreasing her pain 9 “50%.”8 AR 33 (citing AR 845). 10 Third, the ALJ discussed physical examinations that found no evidence of 11 muscle atrophy. AR 35 (citing AR 502 [May 2015 observations by Dr. Hoang of 12 no atrophy] and AR 931 [January 2017 measurements by Dr. Silver]). The ALJ 13 concluded that “pain has not altered her use of [her lower extremity] muscles to an 14 extent that has resulted in atrophy,” which was inconsistent with Plaintiff’s 15 testimony. Id. 16 As a fourth reason for discounting her testimony, the ALJ noted that Plaintiff 17 “engaged in a somewhat normal level of daily activity” which included “attending 18 a diabetes class, exercising four days per week, making simple meals, doing 19 dishes, driving, going out alone, grocery shopping, paying bills, and spending time 20 with friends.” AR 35; see AR 271 (Adult Function Report); AR 587 (discussing 4- 21 part diabetes class); AR 438, 593 (in October 2013, Plaintiff told Kaiser that she 22 “exercises 20 minutes 5 days per week at a moderate or strenuous level”); AR 429 23 (in April 2014, Plaintiff told Kaiser that she “exercises 1050 minutes per week at a 24 moderate to strenuous level”)9; AR 653 (in April 2014, Plaintiff told Kaiser that 25 26 27 28 8 In November 2013, Plaintiff reported that her only medication was Gemfibrozil (a cholesterol-lowering medication) and she did not want to take “too many meds.” AR 437. 9 Even if the medical professional meant to write “150 minutes” or “10-15” 9 1 she exercises “4 or more days per week” typically for “over 30 minutes”). The 2 ALJ concluded that Plaintiff’s ability to “participate in such activities diminish[ed] 3 the persuasiveness” of her allegations of extreme functional limitations. AR 35. 4 4. The ALJ Gave Clear and Convincing Reasons Supported by 5 Substantial Evidence for Discounting Plaintiff’s Testimony. 6 First, the ALJ was permitted to consider if the extreme physical limitations 7 claimed by Plaintiff many years after her fall were consistent with the objective 8 medical evidence. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 9 (“While subjective pain testimony cannot be rejected on the sole ground that it is 10 not fully corroborated by objective medical evidence, the medical evidence is still 11 a relevant factor in determining the severity of the claimant's pain and its disabling 12 effects.” (citation omitted)). The ALJ’s finding of inconsistency is supported by 13 substantial evidence, as cited above. 14 Next, the ALJ properly considered Plaintiff’s inconsistent symptom 15 reporting. See Social Security Ruling (“SSR”) 16-3p, 2016 SSR LEXIS 4. The 16 records cited by the ALJ show that what Plaintiff told medical sources about her 17 functional limitations was less extreme than her hearing testimony. The Court 18 further notes that when Plaintiff went to the emergency room in March 2016 19 complaining of abdominal pain, she was “negative” for back pain, displaying a 20 “normal range of motion” and “normal muscle tone.” AR 1102-03. ER staff 21 observed that she was “ambulatory with no restrictions.” AR 1111; see also AR 22 1185 (noting Plaintiff “ambulated > 300 feet” and “able to perform ADLs 23 independently” without mentioning use of a cane). Plaintiff reported being able to 24 walk no more than 5 minutes without her legs shaking and could not be on her feet 25 longer than 10-15 minutes and needed a cane, yet she told Kaiser that she exercised 26 27 28 minutes, either way this would exceed what Plaintiff stated she was capable of doing on a regular basis. 10 1 for 20 or 30 minutes at a time regularly at a moderate to strenuous level. Compare 2 AR 68-72, 276 and AR 429, 593, 653. Thus, the ALJ’s finding of inconsistency 3 between Plaintiff’s testimony and reported activities is supported by substantial 4 evidence, and it provides another clear and convincing reason to discount 5 Plaintiff’s testimony. 6 Under some circumstances, the Ninth Circuit permits ALJs to consider 7 whether the lack of atrophy is consistent with a claimant’s subjective symptom 8 testimony. See Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001) 9 (upholding an ALJ’s rejection of symptom testimony where the ALJ made specific 10 findings including a lack of atrophy); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th 11 Cir. 1999) (upholding adverse credibility determination where claimant’s 12 testimony that pain “required her to lie in a fetal position all day” was inconsistent 13 with not “exhibit[ing] muscular atrophy”).10 Plaintiff testified that even on good 14 days, she spent at most 45 minutes per day on her feet. AR 68-69. The ALJ could 15 properly find that such extreme inactivity was inconsistent with a lack of 16 observable atrophy. But even if the ALJ erred by considering the lack of atrophy, 17 any error was harmless, because the ALJ cited other reasons sufficient to discount 18 Plaintiff’s testimony. See Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991) 19 (holding that a decision of the ALJ will not be reversed for errors that are 20 harmless). 21 Given the clear and convincing nature of the ALJ’s reasons for discounting 22 Plaintiff’s testimony, substantial evidence supported the absence of a cane 23 requirement, given the other limitations set out in the RFC such as no walking on 24 uneven terrain and limiting her to sedentary work. Furthermore, the VE testified 25 26 27 28 10 But see Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 665 (9th Cir. 2010) (unpublished) (ALJ’s reliance on lack of muscle atrophy inappropriate where “no medical evidence suggest[ed] that high inactivity levels necessarily lead to muscle atrophy”). 11 1 that including a cane or assistive device for ambulation would reduce all three 2 positions in the labor market by 50 percent. See AR 83-84. Based on the VE’s 3 testimony, such a reduction would leave 121,000 bench assembler, 204,500 table 4 worker, and 210,000 surveillance monitor positions in the national economy. See 5 AR 38. These figures would render any error harmless. See Jones v. Berryhill, 6 No. 17-00376, 2018 WL 4292245, at *5 (E.D. Cal. Sept. 7, 2018) (finding any 7 error in not including certain RFC limitations harmless, because VE testified that 8 plaintiff could perform other jobs even with these limitations); Gutierrez v. 9 Comm’r, Soc. Sec., 740 F.3d 519, 528-29 (9th Cir. 2014) (holding that 25,000 10 national jobs was a significant number); Thomas v. Comm’r, 480 Fed. App’x 462, 11 464 (9th Cir. 2012) (affirming ALJ even though claimant could not perform two 12 identified jobs because she could perform the remaining job of housekeeper, which 13 existed in significant numbers in the national economy). 14 IV. 15 CONCLUSION 16 For the reasons stated above, IT IS ORDERED that the decision of the 17 Commissioner shall be AFFIRMED. Judgment shall be entered consistent with 18 this order. 19 DATED: February 18, 2021 20 21 ______________________________ KAREN E. SCOTT United States Magistrate Judge 22 23 24 25 26 27 28 12

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