Gonya v. Colvin

Filing 24

ORDER (1) Denying 15 Plaintiff's Motion for Summary Judgment and (2) Granting 19 Defendant's Cross-Motion for Summary Judgment. Plaintiff's motion for summary judgment is DENIED, and Defendant's cross-motion for summary judgment is GRANTED. The Clerk shall enter judgment accordingly, and terminate this case. Signed by Judge Dana M. Sabraw on 5/23/2017. (aef)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 DIANA ALITRE GONYA, 11 v. 12 13 14 CASE NO. 16cv1160 DMS (PCL) Plaintiff, CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 16 ORDER (1) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT Defendant. On October 31, 2012, Plaintiff Diana Alitre Gonya (“Plaintiff”) filed an 17 application for disability income benefits. Plaintiff’s claim was denied initially, after 18 which she requested a hearing before an Administrative Law Judge (“ALJ”). ALJ 19 Leland H. Spencer held a hearing on November 4, 2014, during which he heard 20 testimony from Plaintiff, medical expert Arthur Lorber, M.D. and vocational expert 21 (“VE”) Connie Guillory. On January 5, 2015, ALJ Spencer issued a written decision 22 finding Plaintiff not disabled. (Administrative Record (“AR”) at 7-16.) Plaintiff filed 23 a request for review of that decision, which the Appeals Council denied on March 18, 24 2016. Plaintiff filed the present case on May 13, 2016. 25 Plaintiff now moves for reversal and remand of Defendant’s decision to deny her 26 benefits. Defendant Carolyn W. Colvin, in her capacity as Commissioner of the Social 27 Security Administration, opposes Plaintiff’s motion and cross-moves for summary 28 / / / -1- 16cv1160 1 judgment. For the reasons discussed below, the Court denies Plaintiff’s motion for 2 summary judgment, and grants Defendant’s cross-motion for summary judgment. 3 I. 4 BACKGROUND 5 Plaintiff is a 42-year old female with past relevant work experience as a security 6 guard and prep cook. (AR at 183.) In June 2011, she injured her right elbow. (Id. at 7 219.) After a course of conservative treatment, including cortisone injections, Plaintiff 8 underwent surgery on her elbow, specifically a topaz microtenotomy on October 5, 9 2012. (Id. at 248.) Following surgery, Plaintiff received physical therapy, and on 10 December 20, 2012, she reported being pain free and “independent” in activities of 11 daily living. (Id. at 258.) Plaintiff thereafter began to complain of renewed pain in her 12 right elbow, and received another cortisone injection, among other treatment. (Id. at 13 294-95.) 14 In his decision denying Plaintiff’s claim, the ALJ found Plaintiff had: 15 the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except the claimant may lift 20 pounds occasionally, and 10 pounds frequently; may sit for 6 hours out of an 8 hour workday; may stand and/or walk for 6 hours out of an 8 hour workday; and the claimant’s right wrist and hand are limited to no more than occasional gross and fine manipulative activities. 16 17 18 19 (Id. at 10.) The ALJ also found Plaintiff’s “statements concerning the intensity, 20 persistence and limiting effects of” her symptoms were not entirely credible for several 21 reasons. (Id. at 11.) He specifically stated Plaintiff’s statements were: 22 23 24 25 inconsistent with her level of activity. She is able to cook; clean her house; tend her garden and remove weeds with a weed whacker; hold her German Shepherd’s leash during bi-daily walks. Furthermore, her allegations are inconsistent with the medical record ..., which overall shows that the claimant’s use of her right elbow is not severely limited, and that her nerves, bones, muscles, and tendons are generally intact. 26 (Id.) After reviewing the medical records, the ALJ concluded, consistent with the 27 testimony of the VE, that 28 / / / -2- 16cv1160 1 Plaintiff was capable of performing her past relevant work as a security guard. (Id. at 2 15.) 3 II. 4 DISCUSSION 5 Plaintiff raises two arguments in her motion for summary judgment. First, she 6 asserts the VE’s testimony contradicted the Dictionary of Occupational Titles (“DOT”), 7 which required the ALJ to inquire about that conflict. Plaintiff argues the ALJ’s failure 8 to so inquire was error. Second, Plaintiff asserts the ALJ failed to articulate legally 9 sufficient reasons for rejecting Plaintiff’s statements about her limitations. Defendant 10 disputes there was anything improper about the ALJ’s analysis, and urges the Court to 11 affirm the Commissioner’s decision denying Plaintiff’s request for benefits. 12 A. Legal Standard 13 Under the Social Security Act, “disability” is defined as the: 14 inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42 U.S.C. § 423(d)(1)(A). The impairment must be so severe that the claimant “is not only unable to do his previous work but cannot . . . engage in any other kind of substantial gainful work.” 42 U.S.C. § 423(d)(2)(A). In addition, the impairment must result “from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory techniques.” 42 U.S.C. § 423(d)(3). A court cannot set aside a denial of benefits unless the Commissioner’s findings are based upon legal error or are not supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986); Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). It is more -3- 16cv1160 1 than a scintilla but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 2 1119 n. 10 (9th Cir. 1975). 3 To determine whether substantial evidence exists to support the ALJ’s decision, 4 a court reviews the record as a whole, not just the evidence supporting the decision of 5 the ALJ. Walker v. Matthews, 546 F.2d 814, 818 (9th Cir. 1976). A court may not 6 affirm the Commissioner’s decision simply by isolating a specific quantum of 7 supporting evidence. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). In short, 8 a court must weigh the evidence that supports the Commissioner’s conclusions and that 9 which does not. Martinez, 807 F.2d at 772. 10 If there is substantial evidence to support the decision of the ALJ, the decision 11 must be upheld even when there is evidence on the other side, Hall v. Secretary, 602 12 F.2d 1372, 1374 (9th Cir. 1979), and even when the evidence is susceptible to more 13 than one rational interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 14 1984). If supported by substantial evidence, the findings of the Commissioner as to any 15 fact will be conclusive. 42 U.S.C. § 405(g); Vidal v. Harris, 637 F.2d 710, 712 (9th 16 Cir. 1981). 17 B. VE Testimony and the DOT 18 During the hearing on Plaintiff’s application, the ALJ asked the VE about 19 Plaintiff’s past relevant work. (AR at 55.) The VE described Plaintiff’s past relevant 20 work as a “[s]ecurity guard, 372.667-038.” (Id.) The DOT defines this occupation, 21 Merchant Patroller, as follows: 22 23 24 25 26 27 28 Patrols assigned territory to protect persons or property: Tours building and property of clients, examining doors, windows, and gates to assure they are secured. Inspects premises for such irregularities as signs of intrusion and interruption of utility service. Inspects burglar alarm and fire extinguisher sprinkler systems to ascertain they are set to operate. Stands guard during counting of daily cash receipts. Answers alarms and investigates disturbances. Apprehends unauthorized persons. Writes reports of irregularities. May call headquarters at regular intervals, using telephone or portable radio transmitter. May be armed with pistol and be uniformed. May check workers’ packages and vehicles entering and leaving premises. Dictionary, 372.6670-038, 1991 WL 673101. The VE opined a hypothetical person with Plaintiff’s RFC could perform this occupation. (AR at 56.) The ALJ adopted the -4- 16cv1160 1 VE’s conclusion in his written decision, stating Plaintiff could perform the work of a 2 Merchant Patroller, “as it was actually performed.” (Id. at 15.) 3 Plaintiff argues the ALJ erred when he failed to inquire of the VE whether 4 Plaintiff would be able to perform the occupation of “Merchant Patroller,” which 5 requires frequent handling, Dictionary, 372.6670-038, 1991 WL 673101, given her 6 limitation to “no more than occasional gross handling” with her right wrist and hand. 7 Notably, Plaintiff fails to cite any authority to support her argument that this was error. 8 Case law cited by Defendant, however, suggests it was not. See Pierre v. Colvin, No. 9 CV 15-02944-DTB, 2016 WL 492430, at *2 (C.D. Cal. Feb. 5, 2016) (finding no 10 conflict between DOT and VE testimony where DOT did “not contain a requirement 11 of bilateral reaching, handling, and fingering” for the position); Palomares v. Astrue, 12 887 F.Supp.2d 906, 920 (N.D. Cal. 2012) (finding no conflict between VE testimony 13 and DOT where DOT did “not explicitly require constant reaching with both arms.”); 14 Madrid v. Astrue, No. EDCV 10-1288 AJW, 2011 WL 2444909, at *4-5 (C.D. Cal. 15 June 17, 2011) (finding no conflict between DOT and VE testimony where DOT did not 16 contain any requirement of bilateral fingering ability or dexterity); Feibusch v. Astrue, 17 No. 07-00244 BMK, 2008 WL 583554, at *5 (D. Hawai’i Mar. 4, 2008) (finding no 18 conflict between VE’s testimony and DOT where DOT did not “explicitly state that the 19 use of both arms is required). As in the cases cited by Defendant, the DOT definition 20 of Merchant Patroller does not require bilateral handling, Dictionary, 372.6670-038, 21 1991 WL 673101, and thus there was no conflict between the VE’s testimony and the 22 DOT for the ALJ to resolve. There was no error. 23 C. Plaintiff’s Testimony 24 Next, Plaintiff argues the ALJ failed to give legally sufficient reasons for 25 rejecting Plaintiff’s testimony about her limitations. Plaintiff specifically takes issue 26 with the ALJ’s rejection of Plaintiff’s testimony that she was limited to carrying ten 27 pounds and what Plaintiff describes as the “dexterity testimony.” Defendant claims 28 there was no error. -5- 16cv1160 1 In his written decision, the ALJ found Plaintiff’s “statements concerning the 2 intensity, persistence and limiting effects of” her symptoms were “not entirely credible” 3 because they were inconsistent with Plaintiff’s level of activity and inconsistent with 4 the medical record. (AR at 11.) The ALJ specifically cited Plaintiff’s ability “to cook; 5 clean her house; tend her garden and remove weeds with a weed whacker; hold her 6 German Shepherd’s leash during bi-daily walks.” (Id.) The ALJ also described the 7 overall medical record as showing “that the claimant’s use of her right elbow is not 8 severely limited, and that her nerves, bones, muscles, and tendons are generally intact.” 9 (Id.) 10 Plaintiff does not dispute that the evidence supports the ALJ’s reasons for 11 rejecting Plaintiff’s credibility. Instead, she offers nuanced arguments about those 12 reasons, e.g., that the ALJ failed to specify “what Gonya cooks[]” and failed to note 13 which hand she used to operate the weed whacker and to carry her dog’s leash. (Mem. 14 of P. & A. in Supp. of Pl.’s Mot. at 9.) These arguments do not show the ALJ’s 15 assessment of Plaintiff’s credibility was in error. On the contrary, the ALJ provided 16 “clear and convincing reasons, supported by evidence in the record,” Brown-Hunter v. 17 Colvin, 806 F.3d 487, 489 (9th Cir. 2015), to support his credibility determination. 18 III. 19 CONCLUSION 20 For the reasons discussed above, Plaintiff’s motion for summary judgment is 21 DENIED, and Defendant’s cross-motion for summary judgment is GRANTED. The 22 Clerk shall enter judgment accordingly, and terminate this case. 23 IT IS SO ORDERED. 24 DATED: May 23, 2017 25 26 27 HON. DANA M. SABRAW United States District Judge 28 -6- 16cv1160

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