Deena Marie Callahan v. Carolyn W. Colvin

Filing 25

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is AFFIRMED. (See document for complete details) (afe)

Download PDF
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION 11 12 ) No. SA CV 16-00588-AS ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) ) DEENA MARIE CALLAHAN, 13 Plaintiff, v. 14 15 16 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 17 18 I. PROCEEDINGS 19 20 21 On March 30, 2016, Plaintiff Deena Marie Callahan (“Plaintiff”) 22 filed a Complaint seeking review of the Commissioner’s denial of 23 Plaintiff’s application for a period of disability and disability 24 insurance benefits. 25 Defendant 26 Administrative 27 28 filed an (Docket Entry No 1). Answer Record to (“AR”). the Complaint, (Docket 1 On August 31, 2016, Entry and the Certified Nos. 20-21). The Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for Acting Commissioner Carolyn W. Colvin in this case. See 42 U.S.C. § 205(g). 1 1 parties have consented to proceed before a United States Magistrate 2 Judge. 3 Stipulation 4 their respective positions on Plaintiff’s claims. 5 24). (Docket Entry (“Joint Nos. Stip.”) 14-15). on The December parties 20, 2016, filed a Joint setting forth (Docket Entry No. 6 7 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 On February 25, 2014, Plaintiff, formerly employed as a policy 10 holder information clerk (see AR 23, 51), filed an application for 11 disability 12 October 17, 2013. 13 Law Judge (“ALJ”), John Wojciechowski, examined the record and heard 14 testimony from Plaintiff and vocational expert (“VE”), Kelly Winn- 15 Boaitey. 16 benefits in a written decision. insurance benefits, alleging (AR 154-55). (AR 31-54). disability beginning on On July 20, 2015, Administrative On October 5, 2015, the ALJ denied Plaintiff (AR 9-30). 17 18 The ALJ applied the five-step process in evaluating Plaintiff’s 19 case. At step one, 20 engaged in substantial gainful activity after the alleged onset date 21 of October 17, 2013, and that Plaintiff’s date last insured was June 22 30, 2019. 23 the following severe impairments: degenerative disc disease of the 24 lumbar spine with neuropathy; tendon tears and osteoarthritis of the 25 ankles; ligament tears in the wrists; obesity; depressive (AR 14). the ALJ determined that Plaintiff had not At step two, the ALJ found that Plaintiff had 26 27 28 2 disorder; 14-15).2 1 and 2 determined that Plaintiff’s impairments did not meet or equal a 3 Listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 4 17). anxiety disorder. (AR At step three, the ALJ (AR 15- 5 6 Before proceeding to step four, the ALJ found that, through the 7 date last insured, Plaintiff had the residual functional capacity 8 (“RFC”)3 to do the following: occasionally lift or carry ten pounds; 9 frequently carry less than ten pounds; stand or walk for two hours 10 and sit for six hours in an eight-hour workday; occasionally climb, 11 balance, 12 scaffolds; 13 occasionally have contact with co-workers and supervisors; never 14 have public contact; and limited to simple, repetitive tasks. 15 17). stoop, kneel, avoid or moderate crawl; never exposure use to ladders, ropes, industrial or hazards; (AR 16 After reviewing Plaintiff’s medical record (see AR 17-23), the 17 ALJ found that there was no objective evidence to support a CTS or 18 upper-extremity diagnosis, noting that (1) electrodiagnostic tests 19 for Plaintiff’s upper extremities rendered normal results (AR 19- 20 20); (2) a pain management specialist found that Plaintiff had “5/5 21 strength” in her upper-extremities with a somewhat reduced grip in 22 the right hand (AR 20); and (3) a MRI of Plaintiff’s wrists revealed 23 2 24 25 26 27 28 The ALJ found that Plaintiff’s alleged collapsed arches and degenerative changes in the feet, carpel tunnel syndrome (“CTS”), gout, hypertension, and obsessive compulsive disorder were not severe impairments. (AR 14). 3 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 3 1 tears of the left and right scapholunate ligaments and ganglion 2 cysts. 3 limitations in her lower extremities because of a “mildly abnormal” 4 July 2014 electrodiagnostic test; an October 2014 MRI of the left 5 ankle showing a partial thickness tear; a July 2014 MRI of the 6 cervical spine revealing degenerative disc disease; and a December 7 2013 MRI of the lumbar spine showing a disc bulge in the L3-L4 8 facets, 9 neural foraminal narrowing, and a L5-S1 circumferential disc bulge. (Id.). L4-L5 The ALJ determined that Plaintiff suffered from hypertrophy of the facets with moderate bilateral 10 (AR 18-21). 11 gait and used either a cane or walker during appointments. 12 The ALJ referenced physical therapy records stating that aquatic 13 therapy “decrease[d] [Plaintiff’s] pain temporarily.” 14 ALJ found that Plaintiff suffered from mental limitations, noting 15 that 16 depressive disorder. she was Plaintiff also appeared with an antalgic, shuffling diagnosed with general anxiety (Id.). (AR 20). disorder and The major (AR 19). 17 The ALJ then addressed Plaintiff’s credibility and the opinions 18 of her treating, examining, and nonexamining physicians. (See AR 19 20-23). The ALJ found Plaintiff’s statements regarding the 20 intensity, persistence, and limiting effects of her symptoms not 21 credible because Plaintiff was not compliant with treatment orders 22 to attend regular physical therapy appointments. (AR 21). 23 24 At step four, the ALJ determined that Plaintiff was not able 25 to perform her past relevant work as a policy holder information 26 clerk. (AR 23). At step five, the ALJ found Plaintiff was able to 27 perform jobs consistent with her age, education, and medical 28 limitations existing in significant numbers in the national economy. 4 1 At the hearing, the ALJ asked the VE whether a hypothetical person — 2 with the same age and educational background as Plaintiff, who could 3 occasionally lift at least 10 pounds; frequently lift and carry less 4 than 10 pounds; stand and walk for at least two hours in an eight- 5 hour workday; sit for at least six hours in an eight-hour workday; 6 and is limited to simple, repetitive tasks, no public contact, and 7 occasional contact with co-workers and supervisors — could perform 8 any work. 9 perform the requirements of assembler (Dictionary of Occupational (AR 51-52). (“DOT”) No. The VE testified that such a person could 734.687-0184 (sedentary unskilled Specific 10 Titles 11 Vocational 12 economy)) and final assembler5 (DOT 713.687-0186 (sedentary unskilled 13 SVP 21,000 positions in the national economy)). Preparation (“SVP”) 27,000 positions in the (AR 52). national The ALJ 14 15 16 17 18 19 4 The DOT description for assembler requires “[e]xerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body;” occasional “walking or standing for brief periods of time;” and the “specific vocational preparation” to reach, handle, and finger constantly. ASSEMBLER, DOT 734.687-018. 20 5 21 22 The VE referred to this position as “small final assembler,” but the DOT description lists it as “final assembler.” (See AR 52; DOT 713.687-018). For the sake of brevity, the Court refers to the position as “final assembler.” 23 6 24 25 26 27 28 The DOT description for final assembler requires “[e]xerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body;” occasional “walking or standing for brief periods of time;” and the “specific vocational preparation” to reach, handle, and finger frequently. FINAL ASSEMBLER, DOT 713.687-018. 5 1 did 2 description for assembler and final assembler. not ask the VE if her testimony conflicted with the DOT (See AR 51-52). 3 The ALJ adopted the VE’s testimony in finding that, considering 4 5 the Plaintiff’s age, 6 functional 7 assembler and a final assembler. 8 concluded that Plaintiff was not disabled. capacity, education, Plaintiff work was experience, able to (AR 24). and perform residual work as an Accordingly, the ALJ (AR 24-25). 9 On 10 October 22, 2015, Plaintiff requested that the Appeals 11 Council review the ALJ’s Decision, which was denied on March 1, 12 2016. 13 of the Commissioner, allowing this Court to review the decision. 14 See 42 U.S.C. §§ 405(g), 1383(c). (AR 1-8). The ALJ’s Decision then became the final decision 15 III. STANDARD OF REVIEW 16 17 18 This court reviews the Administration’s decision to determine 19 if the decision is free of legal error and supported by substantial 20 evidence. 21 1161 (9th Cir. 2012). 22 scintilla, but less than a preponderance. 23 F.3d 995, 1009 (9th Cir. 2014). 24 evidence supports a finding, “a court must consider the record as a 25 whole, 26 detracts 27 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). 28 the evidence can reasonably support either affirming or reversing See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, weighing from both the “Substantial evidence” is more than a mere evidence Garrison v. Colvin, 759 To determine whether substantial that [Commissioner’s] 6 supports and conclusion.” evidence Aukland that v. As a result, “[i]f 1 the ALJ’s conclusion, [a court] may not substitute [its] judgment 2 for that of the ALJ.” 3 882 (9th Cir. 2006). Robbins v. Soc. Sec. Admin., 466 F.3d 880, 4 5 IV. PLAINTIFF’S CONTENTIONS 6 7 Plaintiff alleges that, at step five, the ALJ (1) did not 8 encompass Plaintiff’s assigned functional limitations in posing the 9 hypothetical to the VE; and (2) failed to reconcile the VE’s 10 testimony, that Plaintiff could perform the jobs of assembler (DOT 11 734.687-018) and final assembler (DOT 713.687-018), with the DOT. 12 (Joint Stip. at 3-14, 17-26). 13 14 V. DISCUSSION 15 16 After consideration of the record as a whole, the Court finds 17 that 18 evidence and are free from material legal error.7 the Commissioner’s findings are supported by substantial Of Plaintiff’s 19 20 A. 21 The ALJ’s Hypothetical Encompassed All Functional Limitations 22 23 Plaintiff contends that the ALJ’s hypothetical was inadequate 24 because it omitted limitations resulting from Plaintiff’s alleged 25 CTS 26 27 28 and upper-extremity neuropathy. 7 Plaintiff contends that 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). 7 1 orthopedic 2 that 3 that are supported by substantial evidence in the record. 4 Stip. at 8-14). 5 encompassed 6 substantial evidence in the record. tests Plaintiff and has Plaintiff’s handling, subjective fingering, complaints and reaching establish limitations (Joint Defendant asserts that the ALJ’s hypothetical fully Plaintiff’s limitations that were supported by (Joint Stip. at 14-17). 7 Hypothetical questions posed to the VE must include “all of the 8 9 claimant's functional limitations, both by substantial 11 Barnhart, 278 F.3d 12 Shalala, 13 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citing Magallanes v. 14 Bowen, 881 F.2d 747, 756–57 (9th Cir. 1989) (ALJ's reliance on VE 15 testimony was proper where hypothetical contained all Plaintiff’s 16 limitations that were found credible and supported in record). 17 ALJ may properly omit an alleged impairment from a hypothetical if 18 the omission of the impairment is supported by substantial evidence 19 in the record. 20 2001). 49 F.3d 562, (9th 570–71 the Cir. (9th record. mental” supported 956 in and 10 947, evidence physical 2002) Cir. (quoting 1995); see Thomas v. Flores v. Bayliss v. An Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 21 The ALJ found that Plaintiff was not functionally limited by 22 23 CTS 24 \\ 25 \\ 26 \\ 27 \\ 28 and upper-extremity neuropathy \\ 8 because a July 2, 2014, (“EMG”)8 1 electromyography test 2 electrodiagnostic study 3 negative for both conditions. 4 clinical findings, Plaintiff maintains that positive Phalen’s9 and 5 median Tinel’s10 tests in the record constitute substantial evidence 6 that Plaintiff is functionally limited in handling, fingering, and 7 reaching objects. 8 conflict with 9 persuasive (see AR 19-20). of (Joint objective and a Plaintiff’s December upper clinical at 9). that were Despite these However, findings 2014, extremities (AR 600-02, 1148). Stip. 30, the these tests ALJ found Where the medical evidence in the record 10 is not conclusive, “resolution of conflicts” is solely the function 11 of the ALJ. 12 In such cases, “the ALJ's conclusion must be upheld.” 13 Comm'r, 14 Accordingly, 15 Plaintiff’s alleged CTS and upper-extremity neuropathy diagnoses in 16 the hypothetical is supported by substantial evidence in the record. 17 18 19 20 21 22 23 24 25 26 27 28 Soc. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Sec. Admin., the ALJ’s 169 F.3d omission 595, of 601 (9th limitations Morgan v. Cir. 1999). related to 8 “The diagnosis of [CTS] is made primarily by clinical examination and the patient’s history of symptoms. It is important to remember that not all wrist and finger pain is [CTS]. In addition not all finger numbness or tingling is CTS. Confirmation of the diagnosis with the use of nerve electrodiagnostic testing is useful. Electrodiagnostic testing, made up of nerve conduction and [EMG] testing is used to confirm the diagnosis of [CTS] and other nerve disorders.” 9 A Phalen’s test is an orthopedic test used to diagnose CTS. Positive signs of a Phalen’s test include upon compression, complaints of pain, tingling, or numbness in the hands.'s_Test. 10 A Tinel’s test is an orthopedic test used to detect irritated nerves. Positive signs of a Tinel’s test is upon light tapping over a nerve the patient complains of a tingling sensation. 9 1 Moreover, Plaintiff contends that the ALJ was required to 2 include 3 numbness in her hands in the hypothetical question to the VE or in 4 formulating 5 provided clear and convincing reasons to find Plaintiff’s testimony 6 regarding her symptoms and limitations not credible. 7 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (An ALJ 8 may 9 symptoms only by offering specific, clear and convincing reasons for 10 her subjective her “reject RFC. the complaints (Joint claimant's regarding Stip. at testimony pain, 13). about tingling, However, the the and ALJ (AR 20-23). severity of her doing so.”). 11 12 The ALJ found that Plaintiff’s statements concerning the 13 intensity, persistence, and limiting effects of her symptoms were 14 not entirely credible because they were not corroborated by the 15 record 16 course of treatment despite “improvement in symptomology.” 17 23). This was a clear and convincing reason to find Plaintiff’s 18 testimony 19 (affirming 20 neurological 21 evidence” of any significant disabling abnormality of the claimant’s and because less Plaintiff credible.11 ALJ’s and decision had See Osenbrock, that orthopedic failed relied in evaluations to follow 240 part F.3d on revealed a at prescribed (AR 22- 1157-1166 finding “very that little 22 11 23 24 25 26 27 28 Although a claimant’s credibility “cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor . . .” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Lack of supporting objective medical evidence is a key consideration for the ALJ in evaluating credibility. See 20 C.F.R. §§ 404.1529(c)(4); 416.929(c)(4) (in determining disability, an ALJ must evaluate a claimant’s statements about the intensity, persistence and limiting effects of her symptoms “in relation to the objective medical evidence and other evidence”). 10 1 upper or lower extremities, or spine); Chaudhry v. Astrue, 688 F.3d 2 661, 672 (9th Cir. 2012) (quoting Orn v. Astrue, 495 F.3d 625, 638 3 (9th Cir. 2007) (“[I]f a claimant complains about disabling pain but 4 fails to seek treatment, or fails to follow prescribed treatment, 5 for the pain, an ALJ may use such failure as a basis for finding the 6 complaint unjustified or exaggerated . . . ”). 7 8 9 The record supports the ALJ’s finding that Plaintiff did not follow prescribed physical 12 shoulder flexion and extension, wall push-ups, straight arm circles, 13 and various lower-extremity exercises. 14 2015, Plaintiff’s physical therapist, Shannon Walker, P.T., informed 15 treating physician, Abel Quesada, M.D., “that [Plaintiff] ha[d] not 16 been fully participating in MD prescribed PT visits,” missing eleven 17 appointments in the course of three months and attending only three 18 appointments over the course of four weeks. 19 2015, Chelsea Sobeich, D.P.T., noted that Plaintiff “demonstrate[d] 20 improved 21 therapy [and] would benefit from aquatic therapy if she was more 22 consistent with attendance.” 23 2013, 24 Plaintiff “showed up only once for evaluation” and did not attend 25 any further physical therapy visits. 26 periods, Plaintiff kept regular appointments with Suhasini Dushmukh, 27 M.D. (see 394-591), Charles Schwartz, M.D. (see AR 670-84), Nina 28 Barlevy Psy.D. (see 685), and Amir Pouradib, M.D. (see 856-71). therapist at the and (AR 842-50). strength (AR 849). Physical 11 physical her order to improve her range of motion and strength, which included motion] aquatic alleviate 11 of prescribed to symptoms. [range was treatment 10 a Plaintiff therapy (AR 850). since therapy in On March 26, On April 20, beginning aquatic Similarly, on June 18, Therapy Center (AR 270). noted that Throughout these 1 Plaintiff’s 2 therapy treatment is therefore a clear and convincing reason to 3 reject Plaintiff’s symptom testimony. 4 672. unexplained failure to follow prescribed physical See Chaudhry, 688 F.3d at 5 6 B. The VE’s Testimony Does Not Conflict With The DOT 7 8 Plaintiff contends that the ALJ improperly found that Plaintiff 9 is able to perform the occupations of assembler (DOT 734.687-018) 10 and final assembler (DOT 713.687-018) because there is a deviation 11 between Plaintiff’s RFC and the description of these positions in 12 the DOT. (Joint Stip. at 5-8). 13 that ALJ’s 14 “frequently” 15 conflicts with the DOT descriptions for these jobs, which require a 16 worker 17 abilities, and be able to perform “repetitive work, or perform[ ] 18 continuously the same work, according to set procedures, sequence, 19 or pace.” 20 hypothetical question included all of the limitations found by the 21 ALJ, 22 [Plaintiff] to frequent use of the hands.” the to who, finding lifting “have and that Specifically, Plaintiff alleges Plaintiff’s carrying constant less reaching, (Joint Stip. at 5-6). contrary to Plaintiff’s than RFC 10 handling, limits pounds and her (AR to 17), fingering” Defendant asserts that “[t]he assertions, did not limit (Joint Stip. at 14). 23 24 The ALJ relies on the DOT and VE testimony to determine whether 25 — given the claimant’s RFC, age, education, and work experience — 26 the claimant “actually can find some work in the national economy.” 27 20 C.F.R. § 416.966(e); Zavalin v. Colvin, 778 F.3d 842, 846 (9th 28 Cir. 2015); Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 12 1 (9th Cir. 2009). 2 [VE’s] testimony and the DOT — for example, expert testimony that a 3 claimant can perform an occupation involving DOT requirements that 4 appear to be more than the claimant can handle — the ALJ is required 5 to reconcile the inconsistency.” 6 Massachi v. Astrue, 486 F.3d 1149, 1153–54 (9th Cir. 2007). 7 ALJ's failure to inquire into an apparent conflict is harmless where 8 there is no actual conflict between the RFC and the DOT. 9 v. Colvin, 622 F. App'x 687, 689 (9th Cir. 2015) (citing Massachi, 10 “When there is an apparent conflict between the Zavalin, 778 F.3d at 846 (citing An Ranstrom 486 F.3d at 1154 n. 19). 11 12 Here, the VE testified that Plaintiff can perform the 13 occupations of assembler (DOT 734.687-018) and final assembler (DOT 14 713.687-018). 15 position 16 occasionally;” a “negligible amount of force frequently . . . to 17 lift, carry, push, pull, or otherwise move objects;” and constant 18 handling, 19 734.687-018. 20 that of assembler, except that it requires frequent (exists 1/3 to 21 2/3 of the time) handling, fingering, and reaching. 22 FINAL ASSEMBLER, DOT 713.687-018. (AR 51-52). that requires fingering, and The DOT defines assembler as a sedentary “[e]xerting up reaching. to 10 pounds 734.687-018 of force ASSEMBLER, DOT The DOT description for final assembler is the same as See 713.687-018 23 24 The ALJ’s RFC determination was consistent with the DOT 25 descriptions for the jobs identified by the VE. Despite Plaintiff’s 26 assertions (see Joint Stip. at 5), the ALJ assigned no limitation 27 regarding Plaintiff’s ability to, handle, finger, or reach objects. 28 (AR 17). Thus, the VE’s testimony that Plaintiff could perform the 13 1 jobs of assembler and final assembler did not deviate from the DOT. 2 See Reese v. Astrue, No. ED CV 11-540-PLA, 2012 WL 137567, at *7 3 (C.D. Cal. Jan. 17, 2012) (finding no conflict between the DOT and 4 Plaintiff’s limitations where ALJ’s RFC determination contained no 5 reaching limitations and VE testimony stated Plaintiff could perform 6 jobs that require constant reaching). 7 Moreover, the ALJ’s failure to question the VE regarding an 8 9 apparent conflict between the DOT and VE testimony is harmless 10 error. See Massachi, 486 F.3d at 1154 n. 19 (it is harmless error 11 for an ALJ to not inquire about an apparent conflict between the DOT 12 and 13 descriptions). 14 could perform the alternative work of assembler and final assembler. RFC when there is no actual conflict between these Accordingly, the ALJ properly found that Plaintiff 15 VI. 16 CONCLUSION 17 18 19 For the foregoing reasons, the decision of the Administrative Law Judge is AFFIRMED. 20 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 23 Dated: February 8, 2017 24 25 26 27 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 28 14

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?