Aurora Ramos v. Jo Anne B Barnhart

Case 2:05-cv-00410-MLG Document 17 Filed 12/19/05 Page 1 of 12 Page ID #:44 “O” 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT O...

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Case 2:05-cv-00410-MLG Document 17 Filed 12/19/05 Page 1 of 12 Page ID #:44

“O”

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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AURORA RAMOS,

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Plaintiff,

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v.

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JO ANNE B. BARNHART, Commissioner of the Social Security Administration, Defendant.

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I.

) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. CV 05-00410-MLG MEMORANDUM OPINION AND ORDER

Procedural History This

is

an

action

for

judicial

review

of

the

Defendant

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Commissioner's final decision denying Plaintiff's application for

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Supplemental Security Income benefits under Title XVI of the Social

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Security Act. 42 U.S.C. § 1381, et seq.

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below, the final decision of the Commissioner is affirmed.

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For the reasons stated

Plaintiff was born on November 12, 1934, and was 59 years old

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at the time of the 2003 administrative hearing.

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Record (“AR”) at 483).

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speak, read, or write in English.

(Administrative

She never attended school and is unable to (Id.).

She has worked as a

Case 2:05-cv-00410-MLG Document 17 Filed 12/19/05 Page 2 of 12 Page ID #:45

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sprinkler system assembler and as a packager of aluminum cans.

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at 23, 483-85).

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(AR

Plaintiff filed an application for SSI benefits on September 29,

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2000.

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unable to work since May 9, 1999, owing to depression, arthritis in

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her feet, severe headaches, insomnia, blurry vision, and high blood

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pressure.

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reconsideration.

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(AR at 55-67).

(AR at 56).

She alleges that she has been disabled and

The application was denied initially and on

(AR at 36-39, 41-44).

A de novo hearing was held on May 9, 2003 before Administrative

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Law Judge (“ALJ”) Dennis T. Bennett.

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represented by counsel, and with the assistance of an interpreter,

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testified at this hearing.

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ability to sit for four hours, stand for one hour, and walk three

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blocks.

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in her back, neck, shoulders, and hands, as well as swelling in her

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feet.

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limiting her capacity to engage in work-like activity.

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(AR at 488-89).

(AR at 480-91).

Plaintiff,

Plaintiff testified that she had the

She also testified that she suffers pain

(AR at 486). She identified headaches as an additional factor (AR at 487).

In a decision dated May 30, 2003, the ALJ determined that

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Plaintiff was not disabled.

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concerning Plaintiff’s impairments:

The ALJ made the following findings

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“mild degenerative disc disease of the cervical and lumbar spine

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areas which, in combination have more than a minimal effect upon

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her ability to perform basic work related activities.

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obese but there is no evidence that such adversely affects any

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body system as analyzed under SSR 00-3p.

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but the record shows that when she takes her medications as

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prescribed, her blood pressure is controlled.

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hypertension and Heberden’s nodes are nonsevere, individually, 2

She is

She has hypertension,

Her obesity,

Case 2:05-cv-00410-MLG Document 17 Filed 12/19/05 Page 3 of 12 Page ID #:46

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and in combination with her other impairments, severe and

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nonsevere.

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establishing

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assessments of the DDS psychiatrists, I find that she has

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anxiety and depressive disorders which are, also, not severe,

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individually, or in combination.”

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The ALJ further found that these impairments failed, both singly

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or in combination, to meet or medically equal any of the impairments

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contained in the listings or to be equal in severity to a listing.

Although there is no longitudinal treatment record any

severe

mental

impairment,

based

upon

the

(AR at 24-25).

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20 C.F.R., Part 404, subpt. P, App. 1. (AR at 25).

The ALJ

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determined

capacity

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(“RFC”) to perform work-related activities at the medium exertional

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level.

(Id.).

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(Id.).

Based on these findings, the ALJ concluded that Plaintiff

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could return to her past relevant work.

that

Plaintiff

has

the

residual

functional

In so doing, he also found Plaintiff not credible.

(Id.).

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Plaintiff filed a Request for Review with the Appeals Council

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which was denied on November 19, 2004. Plaintiff then commenced this

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action for judicial review.

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issues and contentions, Plaintiff raises three claims of error.

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contends that the ALJ erred, first, in determining that her mental

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impairment was not a severe impairment; second, in finding that she

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had the residual functional capacity for medium work; and third, in

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finding her testimony not credible. (Joint Stipulation (“JS”) at 3).

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This matter is ready for decision.

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In the parties' joint stipulation of

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She

Case 2:05-cv-00410-MLG Document 17 Filed 12/19/05 Page 4 of 12 Page ID #:47

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II.

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Standard of Review Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s final decision to deny benefits.

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decision should be upheld if they are free from legal error and are

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supported by substantial evidence based on the record as a whole.

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42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);

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Holohan

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Substantial evidence means such evidence as a reasonable person might

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accept as adequate to support a conclusion.

v.

Massanari,

246

F.3d

1195,

1201

The findings and

(9th

Cir.

2001).

Richardson, 402 U.S. at

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401; Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996).

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more than a scintilla, but less than a preponderance.

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F.3d at 720.

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finding, the reviewing court “must review the administrative record

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as a whole, weighing both the evidence that supports and the evidence

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that detracts from the Commissioner’s conclusion.”

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evidence can reasonably support either affirming or reversing,” the

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reviewing court “may not substitute its judgment” for that of the

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Commissioner.

It is

Reddick, 157

To determine whether substantial evidence supports a

Id.

“If the

Id. at 720-21.

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III. Discussion and Analysis

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(A)

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The ALJ Properly Found Plaintiff’s Mental Impairment Non-Severe Plaintiff’s contends that the ALJ erroneously found Plaintiff’s

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mental impairment to be non-severe.

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failed to give adequate consideration to the opinion of agency

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reviewing physician Glenn Ikawa, M.D. Plaintiff’s claim lacks merit.

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The existence of a severe impairment is demonstrated when the

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evidence establishes more than a minimal effect on an individual’s

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ability to do basic work activities. Smolen v. Chater, 80 F.3d 1273, 4

According to Plaintiff, the ALJ

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1290 (9th Cir. 1996); 20 C.F.R. §§ 404.1521(a), 416.921(a).1

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the ALJ found that there was no medical evidence establishing a

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severe mental impairment.

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diagnosed with anxiety and depressive disorders, he found them to be

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non-severe both individually or in combination.

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supported by substantial evidence.

Here,

While he found that Plaintiff had been

This finding is

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On January 6, 2001, Lawrence Ogbechie, M.D., a board-eligible

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psychiatrist, examined Plaintiff at the request of the Department of

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Social

Services

for

a

disability

evaluation.

He

described

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Plaintiff’s mood as sad and dysphoric, with mild emotional expression

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of affect. (AR at 154.)

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otherwise specified, moderate psychosocial stressors, and a global

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assessment of functioning (“GAF”) of 60.2

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Ogbechie’s report notes that Plaintiff “has no restrictions of her

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daily

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functioning.” (AR at 155).

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concentration, there were no episodes of emotional deterioration and

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Plaintiff was capable of understanding, remembering and carrying out

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simple instructions. Id.

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activities,

and

He diagnosed depressive disorder, not

has

no

difficulty

(AR at 154.)

in

maintaining

Dr.

social

While he found some difficulty with

The prognosis was deemed to be good.

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The regulations define “basic work activities” as “the abilities and aptitudes necessary to do most jobs”, which include physical functions such as walking, standing, sitting, pushing, carrying; capacities for seeing, hearing and speaking; understanding and remembering simple instructions; responding appropriately in a work setting; and dealing with changes in a work setting. 20 C.F.R. § 404.1521(b). 2

A GAF score of 51 to 60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” DSM-IV at 34. 5

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Wallace

Campbell,

M.D.,

a

non-examining

agency

physician

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completed a psychiatric disability determination form on February 20,

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2001,

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specified.

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severe.

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Mental Health Center, conducted an initial psychiatric evaluation in

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which she diagnosed Plaintiff with generalized anxiety disorder and

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five psychosocial stressors.

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Plaintiff with a GAF score of 50.3

and

diagnosed

Plaintiff

(AR at 171.)

with

depression,

not

otherwise

He concluded that the impairment was not

On March 1, 2001, Barbara Strong, M.D., of La Puente Valley

(AR at 146.)

Dr. Strong assessed

(AR at 146.)

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On July 24, 2001, Glenn Ikawa, M.D., another agency reviewer,

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reviewed the record and completed a disability determination form in

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which he diagnosed Plaintiff with moderate limitations in her ability

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to understand and remember detailed instructions as well as the

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ability to carry out detailed instructions.

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diagnosed Plaintiff with generalized anxiety.

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Ikawa did not endorse the “not severe” assessment and instead found

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a residual functional capacity assessment necessary.

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After performing that assessment, he concluded only that Plaintiff

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had

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additional limitations of any kind.

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a

mild

difficulty

in

maintaining

(AR at 184.)

He also

(AR at 182.)

Dr.

(AR at 188.)

concentration,

with

no

(AR at 198.)

On December 10, 2002, Dr. Strong again assessed the record and found Plaintiff’s affective disorders non-severe.

(AR at 441.)

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According to the Diagnostic and Statistical Manual of Mental Disorders, a GAF of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed., text rev. 2000). 6

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In his decision, the ALJ considered the reports of Drs. Strong,

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Ogbechie, and Campbell, but failed to mention that of Dr. Ikawa. The

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ALJ should have considered Dr. Ikawa’s opinion and state the weight

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assigned to it.

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was harmless because the reports of the examining physicians and the

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other agency reviewing physician provided substantial support for the

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finding that Plaintiff’s psychological impairment was non-severe.

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Curry v. Sullivan, 925 F.2d 1129, 1131 (9th Cir. 1990) (harmless error

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rule

applies

20 C.F.R. § 416.927(f).

to

review

of

Thus,

the

ALJ’s

However, the ALJ’s error

administrative

decisions

regarding

10

disability).

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impairment was non-severe was supported by substantial evidence.

decision

that

Plaintiff’s

mental

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(B) The ALJ Properly Assigned Plaintiff a Medium Residual Functional

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Capacity

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Plaintiff claims that the ALJ erroneously assigned Plaintiff a

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residual functional capacity (“RFC”) at the medium exertional level.

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According to Plaintiff, the ALJ’s finding is not reasonable in light

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of Plaintiff’s degenerative disc disease in the cervical and lumbar

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spine, back and neck pain, and bilateral arm and hand pain.

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228).

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specifically consider the impact of obesity on Plaintiff’s ability

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to engage in the physical requirements of medium work.

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claim lacks merit.

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and specifically considered the impact of her obesity.

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In

Furthermore, Plaintiff contends that

his

(AR at

the ALJ failed to

Plaintiff’s

The ALJ properly assigned Plaintiff a medium RFC

decision,

the

ALJ

found

that

Plaintiff

has

mild

26

degenerative disc disease of the cervical and lumbar spine areas

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which, in combination, more than minimally affected her ability to

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Case 2:05-cv-00410-MLG Document 17 Filed 12/19/05 Page 8 of 12 Page ID #:51

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perform basic work related activities.4

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found that she could perform work at the medium exertional level,

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which requires the ability to lift up to fifty pounds at a time with

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frequent lifting and carrying of objects weighing up to twenty-five

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pounds.5

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by substantial evidence and accounted for Plaintiff’s obesity.

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20 C.F.R. § 404.1567(c).

(AR at 24, 26.)

The ALJ

The ALJ’s finding was supported

On January 5, 2001, Concepcion Enriquez, M.D., a board eligible

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internist, conducted an internal medicine consultation.

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51).

(AR at 148-

Plaintiff’s blood pressure was elevated, but she told the

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doctor that she had not taken her medication that day. (Id.).

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of motion in the spine, shoulders, wrists and hands were within

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normal limits.

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but no limitation in the range of motion.

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there was no atrophy.

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limits and there was no sign of radiculopathy.

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that Plaintiff could perform activities at the medium exertional

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level.

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show only mild degenerative changes of the lumbar and cervical spine

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areas as well as normal hands, feet, and shoulders.

Range

There was tenderness in the lumbosacral spine area

(AR at 151).

Muscle tone was normal and

Sensation was intact, gait was within normal Dr. Enriquez stated

X-ray reports signed by Stephen Kanter, M.D.,

(AR at 420-23).

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The ALJ relied upon this report in making his finding.

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rejected a physical capacity evaluation submitted by counsel on

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January 8, 2003, which checked off boxes indicating that Plaintiff

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could not carry any weight and was unable to stand, walk or sit for

He

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4

The ALJ found Plaintiff’s other impairments non-severe, individually or in combination with her other impairments, but did not mention any specific reasons for this finding. (AR at 24-25.) 5

Additionally, the ALJ’s finding of medium exertional RFC was predicated upon what may be an erroneous rejection of Plaintiff’s testimony which is discussed in Part C, below. 8

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more than one hour in an eight hour day, on the basis that it was

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contrary to all of the other medical evidence in the record.6 (AR

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467).

4

record

5

significant objective findings. The RFC evaluation was supported by

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substantial evidence.7

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(C) The ALJ’s Credibility Determination Is Substantially Supported

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This finding was not erroneous and based upon the medical showing

only

mild

degenerative

changes

without

other

Plaintiff contends that the ALJ failed to offer specific and cogent

reasons

for

discounting

her

subjective

complaints.

In

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rejecting Plaintiff’s credibility, the ALJ found, first, that the

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objective medical evidence failed to substantiate disability; second,

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that her treatment history was not commensurate with her alleged

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impairments; third, that Plaintiff exaggerated her symptoms in that

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her allegations of almost complete incapacity were at odds with the

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observations of various examining physicians; and fourth, that the

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record

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statements regarding the extent of her daily activities.

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25).

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demonstrated

inconsistencies

between

Plaintiff’s

own

(See AR at

Under the governing legal standard, unless there is evidence

20

that

21

claimant’s

22

symptoms by making “specific findings stating clear and convincing

a

claimant

is

subjective

malingering, testimony

the

ALJ

can

only

reject

regarding

the

severity

of

the his

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6

Indeed, in reviewing this document the court cannot determine whether it was prepared by the doctor, an assistant or the Plaintiff. There is a note on top stating: “Please fill out & give patient + SSI for Judge”. 7

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The Court also notes that contrary to Plaintiff’s contention, the ALJ did consider Plaintiff’s obesity and found that there was no evidence that Plaintiff suffers any major adverse affects from her obesity. (AR at 24). 9

Case 2:05-cv-00410-MLG Document 17 Filed 12/19/05 Page 10 of 12 Page ID #:53

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reasons for doing so”.

2

Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 917-18 (9th Cir. 1993).

3

Under this standard, it is not sufficient for the ALJ to make general

4

findings about the claimant’s testimony.

5

Rather, the ALJ must specify which testimony is not credible and

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state the specific evidence that suggests the testimony is not

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credible.

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Smolen v. Chater, 80 F.3d 1273, 1284 (9th

Dodrill, 12 F.3d at 918.

Id.

In determining credibility, the ALJ may consider “ordinary techniques

of

credibility

evaluation,”

such

as

inconsistent

10

statements, unexplained failures to seek treatment, and the daily

11

activities of the claimant.

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also consider the “observations of treating and examining physicians

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and other third parties regarding . . . the nature, onset, duration,

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and

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aggravating factors; functional restrictions caused by the symptoms;

16

and the claimant’s daily activities.

frequency

of

the

Smolen, 80 F.3d at 1284.

claimant’s

symptom;

The ALJ must

precipitating

and

Id.

17

In this case, as set forth above, the ALJ provided numerous

18

reasons and examples as to why he found Plaintiff not to be credible

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It

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substantially supported.

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objective medical evidence does not fully substantiate Plaintiff’s

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claimed impairments.

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cannot form the sole basis for discounting a claimant’s testimony,

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“it is a factor the ALJ can consider in his credibility analysis.”

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Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

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decision, the ALJ pointed out the lack of clinical or other evidence

27

supporting the degree of limitation claimed by Plaintiff.

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suffices

to

point

out

that

each

of

the

ALJ’s

reasons

is

First, as set forth more fully above, the

While a lack of objective medical evidence

10

In his

Case 2:05-cv-00410-MLG Document 17 Filed 12/19/05 Page 11 of 12 Page ID #:54

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Second, the ALJ’s finding that Plaintiff’s treatment history was

2

not commensurate with the alleged severity of her impairments is also

3

supported.

4

to

5

hospitalizations

6

discounting Plaintiff’s credibility is legitimate and substantially

7

supported. See, e.g., Flaten v. Sec’y of Health and Human Services,

8

44 F.3d 1453, 1464 (9th Cir. 1995)(minimal treatment supported ALJ’s

9

decision to discredit testimony).

10

her

The ALJ noted the conservative, routine treatment given

by

treating or

physicians

referrals

which

to

did

not

specialists.

include

This

basis

any for

Finally, the ALJ’s finding that Plaintiff gave inconsistent

11

statements is substantially supported in the record.

12

Activities Questionnaire, Plaintiff stated that she cooks every day,

13

does household chores, goes for walks and appointments, does laundry,

14

shops and cleans. (AR at 99-102).

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support a finding of an ability to perform work at a specific

16

exertional level, a claimant’s inconsistent statements regarding her

17

daily

18

credibility.

19

inconsistent with her testimony at the hearing indicating an ability

20

to stand for only one hour and to walk only three blocks. (AR 488).

21

In

22

supported, and Plaintiff’s claim is without merit.

activities

sum,

the

is

a

Smolen

ALJ’s

at

While these statements would not

legitimate 1284.

credibility

In a Daily

basis

These

for

discounting

statements

determination

was

are

her

clearly

substantially

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IV.

Conclusion For the reasons stated above, the Court finds that the ALJ’s

26

decision was supported by substantial evidence.

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for summary judgment is DENIED.

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judgment is GRANTED.

Plaintiff's motion

The Defendant's motion for summary

It is ORDERED that judgment be entered for the 11

Case 2:05-cv-00410-MLG Document 17 Filed 12/19/05 Page 12 of 12 Page ID #:55

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Defendant and that this matter be dismissed with prejudice.

2 3 4

Dated: December 19, 2005

/S/ Marc L. Goldman _______________________________ Marc L. Goldman United States Magistrate Judge

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