Rams v. Commissioner of Social Security

Filing 18

ORDER Regarding Plaintiff's Social Security Complaint; ORDERED to enter Judgment In Favor of Defendant and Against Plaintiff,signed by Magistrate Judge Gary S. Austin on 1/7/13. CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BERNADETTE A. RAMS,
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Plaintiff,
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v.
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MICHAEL ASTRUE, Commissioner of
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Social Security,
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Defendant.
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_____________________________________ )

1:11-cv-02059 GSA
ORDER REGARDING PLAINTIFF’S
SOCIAL SECURITY COMPLAINT

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BACKGROUND

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Plaintiff Bernadette A. Rams (“Plaintiff”) seeks judicial review of a final decision of the

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Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for

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disability insurance and supplemental security income benefits pursuant to Titles II and XVI of

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the Social Security Act. The matter is currently before the Court on the parties’ briefs, which

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were submitted, without oral argument, to Magistrate Judge Gary S. Austin.1

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The parties consented to the jurisdiction of a United States Magistrate Judge. (See Docs. 8 & 9.)

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FACTS AND PRIOR PROCEEDINGS2

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Plaintiff filed applications for benefits in June 2006, alleging disability as of August 21,

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2005. AR 115-125. Plaintiff’s applications were denied initially and on reconsideration; she

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then requested a hearing before an Administrative Law Judge (“ALJ”). AR 29-33, 85-90, 93-

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101. ALJ Sherwin F. Biesman held a hearing and subsequently issued an order denying benefits

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on April 16, 2009, finding Plaintiff was not disabled. AR 34-43. On March 15, 2011, the

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Appeals Council granted review. AR 111-114. On September 3, 2011, the Appeals Council

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found that Plaintiff was not disabled for any period through her date last insured of March 31,

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2006, for purposes of disability insurance benefits. With regard to supplemental security income,

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the Appeals Council found Plaintiff became disabled on March 1, 2008. AR 9-12.

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Hearing Testimony

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ALJ Biesman held a hearing on February 19, 2009, in Los Angeles, California.3 Plaintiff

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appeared and testified; she was assisted by attorney Jon Argenziano. AR 56-77.

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Plaintiff was born March 20, 1951, and was fifty-seven years old on the date of the

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hearing. AR 58. She is single and rents a room in a condominium shared with three others. AR

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59. Because she is not working, her friend pays the $415 monthly rent. AR 59-60.

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Back pain and cataracts were Plaintiff’s main complaints at the time of the hearing. AR

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60. When asked whether any MRI or CT scan of her back was performed, Plaintiff replied that

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an x-ray had been done. AR 60. She does not know why an MRI or CT scan were not done and

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guessed it may have been “because it cost too much.” AR 61. Plaintiff is insured through her

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previous employer, now known as AT&T, and obtains medical treatment through Kaiser. AR

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61. She does not know why she was not referred to an orthopedist. AR 61. Plaintiff then stated

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References to the Administrative Record will be designated as “AR,” followed by the appropriate page

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At the time of the Appeals Council’s decision, Plaintiff was residing in Bakersfield.

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that her treating physician “got [her] going to a back specialist, Dr. Peram,” but there has been no

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mention of “an MRI or any of that other stuff.” AR 62.

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Plaintiff treats her back pain with Tylenol with codeine, number three. AR 63. She takes

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four tablets a day. AR 68. Plaintiff also takes Ultram, Tramadol and Cyclobenzaprine. The

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other prescription medications she takes relate to pre-diabetes and thyroid conditions. AR 64.

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The pain medications do not really help and she cannot take Vicodin as suggested by her doctor

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because it makes her dizzy. AR 66.

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The back pain bothers Plaintiff everyday, “practically all the time.” AR 65. She never
has good days. AR 66. When asked to assign a number between zero and ten to describe her

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pain, Plaintiff stated that it depends upon what she is doing. If she is doing one load of laundry,

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when she has completed the task her pain is a ten. She “can barely do anything in the house” that

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does not cause pain. AR 67. The pain is “just too much” and, as a result, she cannot bend, nor

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sit or stand “too long.” AR 67.

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Plaintiff uses a cane because she is afraid of falling. Either her back pain or the fact she

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has broken her leg twice - once after being hit by a car, and then less than a year later after

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slipping in the shower - or both, make her feel as though she is going to fall if she did not use the

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cane. AR 72.

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For thirty years, Plaintiff worked for what is now known as AT&T. She was an operator

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for twenty years, and then moved into cash management for the last ten years, from 1990 to 2000.

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AR 67-68, 71. As an operator, the position was largely sedentary; in cash management, however,

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she was on her feet for seven hours or more. AR 68. More specifically, with regard to the cash

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management position, Plaintiff worked loading boxes of mail, removing the envelopes from the

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boxes, placing the mail on a conveyor belt, and ensuring the machine used operated efficiently.

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She would also sort and separate the checks from the invoices and place them in another box for

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processing. AR 70. Currently, Plaintiff can sit for about ten to fifteen minutes before she feels

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“like taking a pill” due to the pain. AR 68.

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When she was asked what she did during the day, Plaintiff replied that she cannot “do too

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much,” although she would like to clean the house because she does not work. AR 68-69. She

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will do a load of laundry or clean the kitchen counters or wash dishes, but not all in the same day.

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AR 69. If she does too much, she is “near tears” because of the pain. If that happens, she lies on

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her bed to relax. AR 69. In a typical week - Monday through Friday - Plaintiff is at home and

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does not go out. AR 69. She shops once a week when her friend Tina takes her shopping.

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Otherwise, she does not have money or a vehicle and is in pain. AR 70. Although Plaintiff had a

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pension from AT&T, she elected to take her pension in a lump sum. With those proceeds, she

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bought a home; however, she then lost the home. AR 71-72, 74.

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Medical Record

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The entire medical record was reviewed by the Court. AR 185-576. The medical

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evidence will be referenced below as necessary to this Court’s decision.

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ALJ’s Findings

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Using the Social Security Administration’s five-step sequential evaluation process, the

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ALJ determined that Plaintiff did not meet the disability standard. AR 34-43.

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More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful

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activity since August 21, 2005, the alleged onset date. AR 36. Further, the ALJ identified status

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post-right tibia fracture and back pain as severe impairments. AR 36-39. Nonetheless, the ALJ

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determined that the severity of the Plaintiff’s impairments or combination of impairments did not

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meet or exceed any of the listed impairments. AR 39.

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Based on his review of the entire record, the ALJ determined that Plaintiff has the RFC to
perform the full range of light work. AR 39-42.

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Next, the ALJ determined that Plaintiff was capable of performing her past relevant work

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as a telephone operator. AR 42-43. Therefore, the ALJ concluded Plaintiff was not disabled.

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AR 43.

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Appeals Council’s Findings

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Following review, the Appeals Council adopted the ALJ’s finding that Plaintiff was not

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disabled for the period prior to March 1, 2008. AR 9. However, the Appeals Council

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determined that Plaintiff was in fact disabled for the period beginning March 1, 2008, and thus

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reversed the ALJ’s finding in that regard. More particularly, the Appeals Council found that

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because Plaintiff was limited to sedentary work, she could not perform her past relevant work as

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a mail clerk. Moreover, on March 1, 2008, Plaintiff was fifty-six years old, or of advanced age,

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pursuant to the regulations. Accordingly, the Appeals Council determined that Rule 201.04

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directed a finding that Plaintiff was disabled after March 1, 2008. AR 9-11.

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SCOPE OF REVIEW

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Congress has provided a limited scope of judicial review of the Commissioner’s decision

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to deny benefits under the Act. In reviewing findings of fact with respect to such determinations,

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this Court must determine whether the decision of the Commissioner is supported by substantial

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evidence. 42 U.S.C. § 405 (g). Substantial evidence means “more than a mere scintilla,”

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Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v.

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Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at

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401. The record as a whole must be considered, weighing both the evidence that supports and

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the evidence that detracts from the Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993,

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995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must

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apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

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This Court must uphold the Commissioner’s determination that the claimant is not disabled if the

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Secretary applied the proper legal standards, and if the Commissioner’s findings are supported by

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substantial evidence. See Sanchez v. Sec’y of Health and Human Serv., 812 F.2d 509, 510 (9th

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Cir. 1987).

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REVIEW
In order to qualify for benefits, a claimant must establish that he is unable to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which

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has lasted or can be expected to last for a continuous period of not less than twelve months. 42

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U.S.C. § 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of

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such severity that he is not only unable to do her previous work, but cannot, considering his age,

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education, and work experience, engage in any other kind of substantial gainful work which

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exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989).

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The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th

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Cir. 1990).
Here, Plaintiff argues that the Commissioner’s denial of disability insurance benefits for
the period prior to March 1, 2008, is erroneous.

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DISCUSSION

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The AC’s Finding That Plaintiff Was Not Disabled Prior To March 1, 2008

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Plaintiff argues the Commissioner’s finding that she was not disabled prior to March 1,

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2008, is erroneous. More particularly, Plaintiff contends the determination is not supported by

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substantial evidence, and relies upon Social Security Ruling (“SSR”) 83-20. (Doc. 12 at 11-18.)

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On the other hand, the Commissioner argues that substantial evidence supports the finding of a

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March 1, 2008, onset date. More specifically, the Commissioner contends there is substantial

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evidence in the record to indicate that Plaintiff’s accident of August 21, 2005, did not cause a

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disabling impairment. (Doc. 16 at 5-9.)

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SSR 83-20

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As a general matter, SSR 83-20 sets forth guidelines for determining the
onset date of disability. It directs that the judgment regarding the onset date of
disability “must have a legitimate medical basis” and that the ALJ “should call on
the services of a medical advisor when onset must be inferred.” SSR 83-20. We
have explained this ruling to mean that “[i]n the event that the medical evidence is
not definite concerning the onset date and medical inferences need to be made,
SSR 83-20 requires the [ALJ] to call upon the services of a medical advisor and to

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obtain all evidence which is available to make the determination.” DeLorme v.
Sullivan, 924 F.2d 841, 848 (9th Cir. 1991).

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Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008). Here, the ALJ determined that Plaintiff was

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not disabled at any time. AR 34-43. Moreover, the Appeals Council determined that Plaintiff

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was not disabled from the alleged onset date of August 21, 2005, through March 31, 2006, the

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date last insured. AR 11, 43. In these circumstances, SSR 83-20 does not require the use of a

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medical expert. Sam v. Astrue, 550 F.3d at 809-811. This is because where an ALJ finds that a

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claimant was not disabled at any time through the date of the decision, the question of when the

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claimant became disabled does not arise, and the procedures prescribed in SSR 83-20 do not

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apply. Id. at 810.
Moreover, the medical evidence, discussed more fully below, is not indefinite concerning

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the onset date and medical inferences did not need to be made. There was a legitimate basis for

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finding an onset date of March 1, 2008.

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The Medical Evidence4

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In a pain questionnaire dated July 18, 2006, Plaintiff indicated her pain began “before the

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accident, but moreso [sic] afterwards.” She indicated the pain was located in her right leg, lower

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back and right arm, and the pain bothered her “almost all the time.” AR 152-154.

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Nevertheless, a review of the medical record indicates that Plaintiff’s right leg, although

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broken on two separate occasions, healed and did not incapacitate her for a period of at least

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twelve months. See AR 186-189, 198-202, 205-206, 280-286, 290-294, 324-327, 354 (11/8/05;

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fracture shows satisfactory progress). Further, and significantly, the record reveals little to no

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reference, prior to 2008, of back pain.

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On or about October 4, 2006, internist Barry Gwartz, M.D., conducted a complete

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internal medicine evaluation of Plaintiff. AR 207-212. Plaintiff’s chief complaint was recorded

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The medical record contains a number of duplicate copies; to the degree the Court refers to a specific
report or note, only one citation will be noted.

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to be a fractured right leg. She advised Dr. Gwartz that she had “no other complaints, except

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occasional aches and pains in the upper extremities.” AR 207. Upon examination, with specific

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regard to Plaintiff’s back, Dr. Gwartz noted there was “no tenderness,” that straight leg raising

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was negative and that range of motion was within normal limits. AR 210. With regard to the

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lower extremities, the doctor noted a cast on Plaintiff’s right leg. Range of motion was noted to

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be within normal limits for both knees and hips, as well as Plaintiff’s left ankle. AR 210. The

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doctor noted that Plaintiff’s gait was “slightly lurching” as a result of the cast. AR 211. Dr.

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Gwartz’s impression included “[f]ractured right tibia, currently with cast since date of injury on

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07/08/2006.” AR 211. The doctor concluded that Plaintiff would “probably be wearing the cast

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on her right leg for at least another two months.” AR 211. Nevertheless, Dr. Gwartz concluded

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that Plaintiff - with the cast - was capable of lifting and carrying ten pounds occasionally and ten

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pounds frequently, could sit for six hours in an eight-hour day, and stand or walk for two hours in

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an eight-hour day. AR 211. She was unable to crouch, kneel, stoop or climb, and was precluded

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from working at heights or near hazardous machinery. AR 212.

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In a Physical Residual Functional Capacity Assessment dated October 27, 2006, state

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agency physician A. M. Faigao opined that Plaintiff was capable of occasionally lifting and

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carrying twenty pounds, frequently lifting and carrying ten pounds, standing or walking about six

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hours in an eight-hour day, and sitting about six hours in an eight-hour day. AR 216. Plaintiff

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was to avoid climbing ladders, ropes or scaffolds, but could occasionally climb ramps or stairs,

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stoop, kneel, crouch or crawl. AR 217. The state agency physician did not identify any

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manipulative, visual or communicative limitation. AR 217-218. Plaintiff was to avoid

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concentrated exposure to machinery and heights. AR 218. It was noted that as of January 24,

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2006, Plaintiff’s original fracture had healed as reflected on an x-ray, and she had full range of

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motion. AR 219.

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The Appeals Council’s finding that the “claimant did not report significant back pain to
her physicians at Kaiser Permanente” and that she “received no treatment for her back in 2005

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and 2006" is supported by the medical evidence. The Appeals Council noted that Plaintiff

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complained of back pain on one occasion in 2007, yet refused to be examined. Therefore, like

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the Appeals Council, this Court concludes that prior to March 1, 2008, Plaintiff’s severe back

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impairment did not preclude her from light work.

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Plaintiff’s argument that the medical record establishes she was “incapable of the full

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range of even sedentary work for any prolonged period of time since her traumatic injury of

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August 21, 2005" (Doc. 12 at 17) is simply not accurate. The medical record establishes as the

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Appeals Council found - that Plaintiff became disabled as of March 1, 2008.

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Plaintiff’s Credibility

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Plaintiff argues the ALJ erred in finding her not credible. (Doc. 12 at 17-18.) The

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Commissioner contends the ALJ offered several bases upon which to find Plaintiff not credible.

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(Doc. 16 at 8-10.)

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A two step analysis applies at the administrative level when considering a claimant’s

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credibility. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). First, the claimant must

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produce objective medical evidence of an impairment that could reasonably be expected to

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produce some degree of the symptom or pain alleged. Id. at 1281-1282. If the claimant satisfies

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the first step and there is no evidence of malingering, the ALJ may reject the claimant’s

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testimony regarding the severity of his symptoms only if he makes specific findings that include

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clear and convincing reasons for doing so. Id. at 1281. The ALJ must “state which testimony is

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not credible and what evidence suggests the complaints are not credible.” Mersman v. Halter,

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161 F.Supp.2d 1078, 1086 (N.D. Cal. 2001), quotations & citations omitted (“The lack of

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specific, clear, and convincing reasons why Plaintiff's testimony is not credible renders it

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impossible for [the] Court to determine whether the ALJ's conclusion is supported by substantial

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evidence”); Social Security Ruling (“SSR”) 96-7p (ALJ's decision “must be sufficiently specific

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to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave

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to the individual's statements and reasons for that weight”).

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An ALJ can consider many factors when assessing the claimant’s credibility. See Light v.

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Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ can consider the claimant's

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reputation for truthfulness, prior inconsistent statements concerning his symptoms, other

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testimony by the claimant that appears less than candid, unexplained or inadequately explained

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failure to seek treatment, failure to follow a prescribed course of treatment, claimant’s daily

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activities, claimant’s work record, or the observations of treating and examining physicians.

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Smolen, 80 F.3d at 1284; Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007).

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As indicated above, the first step in assessing Plaintiff’s subjective complaints is to
determine whether Plaintiff’s condition could reasonably be expected to produce the pain or

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other symptoms alleged. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Here, ALJ

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Biesman found that Plaintiff suffered from the severe impairments of status post-right tibia

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fracture and back pain. AR 36. Additionally, the ALJ found that “claimant’s medically

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determinable impairment could reasonably be expected to cause the alleged symptoms; however,

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the claimant’s statements concerning the intensity, persistence and limiting effects of these

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symptoms are not credible to the extent they are inconsistent with the above residual functional

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capacity assessment.” AR 40. This finding satisfied step one of the credibility analysis. Smolen,

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80 F.3d at 1281-1282.

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Because the ALJ did not find that Plaintiff was malingering, he was required to provide

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clear and convincing reasons for rejecting Plaintiff’s testimony. Smolen, 80 F.3d at 1283-1284;

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Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (as amended). When there is evidence of an

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underlying medical impairment, the ALJ may not discredit the claimant’s testimony regarding the

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severity of those symptoms solely because they are unsupported by medical evidence. Bunnell v.

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Sullivan, 947 F.2d 341, 343 (9th Cir. 1991); SSR 96-7. Moreover, it is not sufficient for the ALJ

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to make general findings; he must state which testimony is not credible and what evidence in the

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record leads to that conclusion. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell,

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947 F.2d at 345-346.

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In this case, the ALJ determined that Plaintiff received “rather mild medical treatment”

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for her back pain and that her treating physician’s opinion appears to be based upon Plaintiff’s

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subjective assertions concerning pain where the objective medical record does not support those

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allegations. These are clear and convincing reasons upon which to find Plaintiff’s testimony not

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credible. See Tidwell v. Apfel, 161 F.3d 599, 601-602 (9th Cir. 1998) (finding a mild or minor

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medical condition with all other tests reporting normal provides a basis for rejecting claimant's

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testimony of severity of symptoms); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)

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(inconsistencies between the record and medical evidence supports a rejection of a claimant's

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credibility; no medical treatment or a conservative level of medical treatment has been found to

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suggest a lower level of pain and functional limitations); Fair v. Bowen, 885 F.2d 597, 603-04

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(9th Cir. 1989) (claiming severe conditions yet receiving minimal, conservative, or no treatment

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is a basis to reject claimant's testimony; additionally, failure to follow prescribed treatment can

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be considered in determining credibility); see also 20 C.F.R. § 416.929 (objective medical

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evidence can be used in determining credibility; inconsistencies in evidence will support a

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rejection of credibility).

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Additionally, an ALJ can look to daily living activities as part of the credibility analysis.

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Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); Fair v. Bowen, 885 F.2d at 603; see also

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Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If a claimant is able to spend a

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substantial part of his day engaged in pursuits involving the performance of physical functions

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that are transferable to a work setting, a specific finding as to this fact may be sufficient to

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discredit a claimant's allegations. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d at

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600. The ALJ must make "specific findings relating to [the daily] activities" and their

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transferability to conclude that a claimant's daily activities warrant an adverse credibility

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determination. Orn v. Astrue, 495 F.3d at 639. Here , ALJ Biesman found that although Plaintiff

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indicated she could perform very limited daily activities, she is able to “live alone and [to]

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perform light chores, cooking and shopping” and that the evidence shows “that she should be at

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least capable of performing most light household chores and daily living tasks.”

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Even assuming for the sake of argument that the ALJ erred with regard to Plaintiff’s

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ability to perform the activities of daily living, that error is harmless where the other reasons

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offered are proper and are supported by substantial evidence. See Carmickle v. Commissioner of

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Social Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citing Batson v. Comm. of Soc. Sec.

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Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) [“So long as there remains “substantial evidence

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supporting the ALJ’s conclusions on . . . credibility” and the error “does not negate the validity of

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the ALJ’s ultimate conclusion” such is deemed harmless and does not warrant reversal”]).

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Finally, Plaintiff asserts that her poverty and past homelessness constitute a legitimate

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reason to forgo treatment for back pain, relying upon Gamble v. Chater, 68 F.3d 319 (9th

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Cir.1995). In Gamble, the court emphasized that disability benefits could not be denied because

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of a claimant’s failure to obtain treatment that he cannot afford for lack of funds. Id. at 321.

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However, unlike Gamble where the medical record clearly established a severe impairment and

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the claimant’s inability to afford the medical care necessary to treat his condition, here, there is

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little to no evidence of a severe back impairment prior to 2008. This coupled with evidence that

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Plaintiff had medical insurance coverage through Kaiser distinguishes this matter from Gamble.

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Thus, to the degree the ALJ relies upon a lack of MRI or CT scans that would constitute

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objective evidence of Plaintiff’s back impairments, that finding is not irrational given the lack of

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medical evidence regarding a severe back impairment prior to 2008 and the fact Plaintiff was

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able to obtain other medical treatment during the same period. Accordingly, the Court finds

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there is insufficient evidence in the record to suggest that the Plaintiff was unable to afford any

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medical treatment regarding her back complaints so as to render the ALJ’s findings in this regard

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erroneous.

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CONCLUSION
Based on the foregoing, the Court finds that the Appeals Council’s decision is supported

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by substantial evidence in the record as a whole and is based on proper legal standards.

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Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of the

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Commissioner of Social Security. The Clerk of this Court is DIRECTED to enter judgment in

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favor of Defendant Michael J. Astrue, Commissioner of Social Security and against Plaintiff,

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Bernadette A. Rams.

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IT IS SO ORDERED.
Dated:
6i0kij

January 7, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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