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Melody A. Deluna v. Michael J. Astrue

May 16, 2011


The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge


This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's applications for Disability Insurance Benefits and Supplemental Security Income. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings (Plaintiff's Brief in Support of Complaint ["Plaintiff's Brief"];

Defendant's Brief), and the defendant has filed the certified transcript of record.

On January 29, 2008, plaintiff Melody DeLuna filed an application a period of disability or Disability Insurance Benefits. On the same date, plaintiff filed an application for Supplemental Security Income. Both applications alleged an inability to work since November 8, 2007, due to a broken ankle and severed ligaments in the right ankle. (See 1 Administrative Record ["AR"] 94-103, 115-25, 128-71). On February 26, 2010, an Administrative Law Judge ("ALJ") determined that plaintiff had the following severe impairments -- cervical and lumbar disc bulging with chronic strain, status post right ankle with debridement, and right shoulder strain -- but found that plaintiff was not disabled within the meaning of the Social Security Act. (See 1 AR 18-26).

Following the Appeals Council's denial of plaintiff's request for a review of the hearing decision (see 1 AR 1-3 ), plaintiff filed this action in this Court.

Plaintiff challenges the ALJ's Decision denying benefits, alleging that the ALJ erred in rejecting plaintiff's subjective complaints of pain. After reviewing the matter, the Court concludes that the decision of the Commissioner should be affirmed.


Plaintiff asserts that the ALJ failed to provide clear and convincing reasons for rejecting plaintiff's subjective testimony about her excess pain. In response, defendant argues that the ALJ provided valid reasons for finding plaintiff not fully credible.

Plaintiff testified that she lives alone in a rented RV, does limited driving, has a college degree, and did past work as an aesthetician and as a massage therapist. She testified that her ankle injury, her lumbar disc problem (she was scheduled to have an epidural), her cervical disc problem, and her entire right side, limited her ability to do work, even sedentary work. She testified she could not reach forward with her right arm, and that it hurt her shoulder to reach forward with her left arm. She testified that she was in pain all the time, and that she had complex regional pain syndrome. She testified she was taking Ibuprofen, Tramadol (she had had problems with Vicodin), Cymbalta (ankle pain), and topical Ketaprofen (neck, shoulder, lower back and right ankle), and that taking such medications brought her pain to a manageable level (except on days when she did more activity, e.g., driving to a doctor's appointment [she could not drive on Tramadol because of impaired thinking]).

She testified her custom brace for her foot caused her to have rashes and pain. She testified that because of her pain she could sit for only 10 to 15 minutes at a time, could stand for only 5 minutes at a time, and could lift 5 to 10 pounds (but not often). When asked how she got through the day, she testified that in the morning she would do some physical therapy exercises, would then lie down for 20 to 30 minutes, and would spend the rest of the day lying on a couch with her feet elevated. She testified that during the day she would take walks for 5 to 7 minutes to help her back. She testified that she could do household chores in increments -- she could shop for groceries (a few items at a time), prepare meals, and make the bed. She testified that her doctor had requested a sympathetic nerve block for damage to her foot (which could not proceed because of her active Workers' Compensation case). (See 1 AR 48-53).

The ALJ found that plaintiff's "testimony was generally credible but not to the extent she alleged an inability to perform any work." (1 AR 23). The ALJ then stated: "Such allegation was not supported by the medical evidence or the functional capacity assessments of record." (Id.). After finding that plaintiff was able to perform light work (in accordance with the vocational expert's testimony)*fn1 , id., the ALJ wrote the following: . . . [T]he claimant had two right ankle arthrosporic debridement surgeries, but she recovered well postoperatively. She wears an ankle brace and takes mild pain relief pain medication postoperatively. The objective orthopedic and neurologic findings were mild throughout the record. MRI scans of the cervical and lumbar spine showed mild disc bulging, but no evidence of stenosis or nerve root impairment. An electrodiagnostic study also showed very mild evidence of possible cervical radiculopathy. [¶] The claimant has been treated conservatively for complaints of neck, back, and right shoulder pain. A right shoulder x-ray was unremarkable. Most treating and consulting physicians did not impose any functional limitations on the claimant. At most her physicians limited her range of light work. Only the podiatrist limited the claimant to a range of sedentary work and that assessment is rejected. It is not supported by clinical evidence of a disabling foot or ankle impairment. Postoperative examinations and x-rays of the right ankle showed the claimant healed well. The treating physicians did not conclude that the claimant had any disabling orthopedic or neurological impairment. The claimant's current treatment is conservative. She wears an ankle brace and takes mild pain relief medication. The lack of significant ongoing treatment for severe pain undermined the claimant's credibility." (Id.).

While the ALJ found that plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," he found that plaintiff's "statements concerning the intensity, persistence and limiting effects are not credible to the extent they are inconsistent with the . . . residual functional capacity assessment." (Id.).

A claimant initially must produce objective medical evidence establishing a medical impairment reasonably likely to be the cause of the pain. Smolen v. Chater, 157 F.3d 1273, 1281 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991).

Once a claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms alleged, and there is no evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of her pain and symptoms only by articulating clear and convincing reasons for doing so. Smolen v. Chater, supra; see also Reddick v. ...

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