Celia Medina v. Jo Anne B Barnhart

Case 2:05-cv-08915-MLG Document 16 Filed 09/12/06 Page 1 of 6 Page ID #:44 “O” 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF...

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Case 2:05-cv-08915-MLG Document 16 Filed 09/12/06 Page 1 of 6 Page ID #:44

“O”

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

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CELIA MEDINA,

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Plaintiff,

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

17 Defendant. 18 19

Plaintiff

Celia

Medina

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

Case No. CV 05-8915-MLG MEMORANDUM OPINION AND ORDER

(“Plaintiff”)

seeks

review

of

the

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Commissioner’s final decision denying her applications for Disability

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Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).

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For the reasons stated below, the Commissioner’s decision should be

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affirmed and this action should be dismissed with prejudice.

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I.

Factual and Procedural Background Plaintiff was born on December 7, 1950.

(Administrative Record

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(“AR”) at 321).

She completed the sixth grade in Mexico and has work

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experience as a pre-school teacher, assembler of leather goods, machine

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operator II, nursery school attendant, and playground attendant. (AR at

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352).

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Plaintiff filed applications for DIB and SSI on September 14, 2000.

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(AR at 93-95, 321-23, 341).

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disabled and unable to work since December 6, 1998, due to knee and back

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problems.

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administrative level, after a hearing before an Administrative Law Judge

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(“ALJ”), and on appeal to the Appeals Council.

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70, 325-29).

(AR at 342).

Plaintiff alleges that she has been

Plaintiff’s applications were denied at the

(AR at 5-7, 15-64, 66-

On November 19, 2003, pursuant to a stipulation of the

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parties, this Court remanded Plaintiff’s case for further administrative

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proceedings.

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(AR at 355-58, 360-64).

A second hearing was held before an ALJ on May 4, 2005.

(AR at

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395-417).

Plaintiff, who was represented by counsel, testified at the

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hearing.

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413-16).

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Plaintiff was not under a disability, as defined in the Social Security

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Act.

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in

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applications and that Plaintiff suffers from impairments that more than

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minimally restrict her ability to perform basic work related activity,

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including

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arthroscopic

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sprain/strain (recovered).

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Plaintiff’s impairments did not meet or equal one of the of the listed

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impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1, Regulations

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No. 4 (“the Listings”).

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///

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///

(AR at 398-412).

A vocational expert also testified.

(AR at

On August 29, 2005, the ALJ issued a decision finding that

(AR at 341-54). substantial

back

The ALJ determined that Plaintiff had not engaged

gainful

activity

sprain/strain

surgery

since

the

(recovered),

(recovered),

and

(AR at 344).

2

status

right

(AR at 343-44).

filing

knee

date

post and

of

left right

her

knee ankle

The ALJ concluded that

The ALJ found that Plaintiff was

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capable

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limitations, the ALJ concluded that Plaintiff was capable of performing

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her past work.

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of

performing

medium

work.

(AR

at

352).

Given

these

(AR at 352).

On October 21, 2005, the Appeals Council denied review.

(AR at 5-

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330-32). Therefore, the ALJ’s decision became the final decision of the

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Commissioner.

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judicial review.

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The

(AR at 330).

parties

filed

a

Plaintiff then commenced this action for

Joint

Stipulation

on

August

22,

Plaintiff seeks remand for further administrative proceedings.

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Stipulation at 11).

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be affirmed.

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taken under submission without oral argument.

2006. (Joint

The Commissioner requests that the ALJ’s Decision

(Joint Stipulation at 11).

The Joint Stipulation has been

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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 decision to deny benefits.

The Commissioner’s or ALJ’s

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

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and are supported by substantial evidence based on the record as a

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whole.

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(1971); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001).

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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.

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

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than a scintilla, but less than a preponderance.

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720.

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reviewing court “must review the administrative record as a whole,

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weighing both the evidence that supports and the evidence that detracts

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from

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

Richardson, 402 U.S. at It is more

Reddick, 157 F.3d at

To determine whether substantial evidence supports a finding, the

the

Commissioner’s

conclusion.” 3

Id.

“If

the

evidence

can

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reasonably support either affirming or reversing,” the reviewing court

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“may not substitute its judgment” for that of the Commissioner.

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720-721.

Id. at

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III.

Discussion

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Plaintiff contends that the ALJ’s conclusion that she was capable

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of performing work at the medium exertional level “is inaccurate for

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that period in which [she] was recovering from her impairments.” (Joint

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Stipulation at 9). Specifically, Plaintiff alleges that she is entitled

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to a closed period of disability from the date of her alleged onset,

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December 6, 1998, through the date of her most recent consultative

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examination, December 17, 2004.

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81).

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was under a disability that lasted or was expected to last for a

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continuous period of 12 months during the relevant period of time.

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42 U.S.C. § 423(d)(1).

(Joint Stipulation at 4-6, 9-10, 378-

Plaintiff’s claim lacks merit because she has not shown that she

See

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In an effort to show that she was disabled during the period at

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issue, Plaintiff cites the opinion of her treating physician, Charles

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Schwarz, M.D., as well as her own subjective complaints.

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Stipulation at 5, 9-10 (citing AR at 225-26, 229, 261, 296, 303-05).

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However,

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Schwarz’s opinion and found Plaintiff not credible.

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351-52); see Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)(a

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treating

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conflicts with the physician’s treatment notes); see also Smolen v.

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Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)(to determine whether the

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claimant’s testimony regarding the severity of her symptoms is credible,

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the ALJ may consider (1) ordinary techniques of credibility evaluation,

the

record

physician’s

reveals

opinion

that

may

the

be

4

ALJ

properly

rejected

by

(Joint

discounted

Dr.

(AR at 346, 348,

the

ALJ

when

it

Case 2:05-cv-08915-MLG Document 16 Filed 09/12/06 Page 5 of 6 Page ID #:48

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such

as

the

claimant’s

reputation

for

lying,

prior

inconsistent

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statements concerning the symptoms and other testimony by the claimant

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that appears less than candid; (2) unexplained or inadequately explained

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failure to seek treatment or to follow a prescribed course of treatment;

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and (3) the claimant’s daily activities).

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disability, Plaintiff cites various diagnoses and notations from the

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medical record.

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26, 229, 261, 264, 295, 299, 315).

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might support some level of impairment, they simply do not compel a

In another attempt to show

(Joint Stipulation at 4-5 (citing AR at 40, 215, 224While these random medical findings

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finding of disability in Plaintiff’s case.

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see

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1990)(explaining that the burden of proof is on the claimant to show

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that she is disabled at steps one to four).

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that the opinion of consultative examiner Christopher A. Zahiri, M.D.

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establishes that she was incapable of performing medium and light work

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during the “period of recovery,” because Dr. Zahiri restricted her to

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less than two hours of walking in an eight-hour day.

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at 10 (citing AR at 240)).

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is not complete.

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about the walking restriction by the ALJ.

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that Plaintiff would be entitled to receive normal breaks, Dr. Zahiri

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revised his opinion and concluded that Plaintiff would be able to walk

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six hours in an eight-hour day.

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opinion does not support Plaintiff’s claim of disability.

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///

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///

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///

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///

also

Tackett

v.

Apfel,

180

See 42 U.S.C. § 423(d)(1);

F.3d

1094,

1098

(9th

Cir.

Finally, Plaintiff argues

(Joint Stipulation

Plaintiff’s reading of Dr. Zahiri’s opinion

After issuing his report, Dr. Zahiri was questioned (AR at 242).

(AR at 242, 348).

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When informed

Thus, Dr. Zahiri’s

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IV.

Conclusion Based upon the applicable legal standards, the Court finds that

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the decision of the Commissioner is supported by substantial evidence

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and that the Commissioner applied the proper legal standards.

5 ORDER

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Accordingly, IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.

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DATED:

September 12, 2006

/s/ Marc L. Goldman ______________________________ MARC L. GOLDMAN United States Magistrate Judge

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