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Ana L. Valencia v. Michael J. Astrue

December 19, 2012


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


Ana Valencia ("Plaintiff") asserts she is entitled to disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff argues the administrative law judge ("ALJ") erred in evaluating the medical records and assessing her residual functional capacity. Therefore, Plaintiff seeks judicial review of the administrative decision denying benefits. For the reasons set forth below, the ALJ's decision is AFFIRMED.


Plaintiff filed applications for disability insurance benefits and supplemental security income on September 30, 2008, alleging disability beginning October 20, 2003. (Doc. 13-3 at 23). The Social Security Administration denied her claims initially and upon reconsideration. Id. After requesting a hearing, Plaintiff testified before an ALJ on July 6, 2010. Id. The ALJ determined Plaintiff was not disabled under the Social Security Act, and issued an order denying benefits on October 20, 2010. Id. at 23-32.

Plaintiff requested a review by the Appeals Council of Social Security, which denied review of 2 the ALJ's decision on November 17, 2011. (Doc. 13-3 at 2-7). The Appeals Council noted an earlier 3 determination stood "as the final decision of the Commissioner of Social Security for the period of 4 February 2, 2004 through July 9, 2008." Id. at 2. Accordingly, the Appeals Council considered only 5 the period beginning July 10, 2008. Id. at 2-3. However, the Appeals Council found no reason to 6 review the decision, and the ALJ's determination became the decision of the Commissioner of Social 7

Security ("Commissioner"). 8


District courts have a limited scope of judicial review for disability claims after a decision by the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, such as whether a claimant was disabled, the Court must determine whether the Commissioner's decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ's determination that the claimant is not disabled must be upheld by the Court if the proper legal standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec'y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole must be considered, because "[t]he court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion." Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).


To qualify for benefits under the Social Security Act, Plaintiff must establish she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. 4 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). When a claimant establishes a prima facie case of 5 disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other 6 substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). 7


To achieve uniform decisions, the Commissioner established a sequential five-step process for 9 evaluating a claimant's alleged disability. 20 C.F.R. §§ 404.1520, 416.920 (a)-(f). The process requires the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional capacity to perform to past relevant work or (5) the ability to perform other work existing in significant numbers at the state and national level. Id. The ALJ must consider testimonial*fn1 and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927, 416.929.

A. Relevant Medical Evidence

Dr. Cesar Duclair performed an orthopedic consultative examination on June 14, 2008. (Doc. 13-8 at 3-4). Dr. Duclair noted Plaintiff complained of "[p]ain all over her body, neck pain, numbness and tingling in the upper extremities, lower back pain, [and] numbness and tingling in the lower extremities." Id. at 3. Plaintiff reported she had "difficulty doing any appreciable work inside or outside of the home," as well as "difficulty cooking, cleaning, doing laundry, or walking more than a city block." Id. Dr. Duclair reported he reviewed medical records including "a very long QME from a Dr. Markinson dated 5/4/07." Id. According to Dr. Duclair, the report of Dr. Markinson "listed a nerve conduction study of the upper extremities done on 12/16/03 which reveals a very mild median nerve neuropathy across the left wrist, carpal tunnel syndrome." Id.

Dr. Duclair tested Plaintiff's range of motion, and found her wrists, fingers, and thumbs had "normal" ranges. (Doc. 13-8 at 4). Plaintiff demonstrated "poor participation" on her motor strength 3 test, but Dr. Duclair determined Plaintiff's strength was "5/5 in all muscle groups." Id. Likewise, her 4 grip strength was "5/5." Id. Based upon his examination, Dr. Duclair opined Plaintiff had the ability 5 "to lift and carry 20 pounds on a frequent basis and 35 pounds on an occasional basis." Id. at 4. Dr. 6 Duclair explained the number of hours Plaintiff could be expected to stand, walk, or sit in an eight-7 hour day was "not restricted," and she had no postural or manipulative limitations. Id. 8 Dr. Birgit Siekerkotte performed a comprehensive internal medicine evaluation on December 14, 2008. (Doc. 13-8 at 18-22). Dr. Siekerkotte noted Plaintiff complained of bilateral carpal tunnel syndrome, "though there has been some dispute about whether it is bilateral or not." Id. at 18. Plaintiff's motor strength was "good, 4/5 bilaterally." Id. at 21. Based upon her examination, Dr. Siekerkotte offered the following functional assessment:

Maximum standing and walking capacity: Up to four hours based on decreased range of motion of the hips and positive pain with straight leg raising.

Maximum sitting capacity: No limitations.

Assistive device: None used or needed.

Maximum lifting and carrying capacity: 10 pounds occasionally and frequently based on decreased upper extremity strength.

Postural limitations: Climbing, balancing, stooping, kneeling, crouching, and crawling should be limited to occasionally based on decreased range of motion of the lower extremities, as well as decreased grip strength.

Manipulative limitations: Reaching, handling, fingering, and feeling should be able to be done frequently as long as no heavy lifting is involved. Id. at 21. According to Dr. Siekerkotte, these limitations would be applicable for twelve months following the examination. Id.

Plaintiff's treating physician, Dr. Theodore Schwartz, completed a medical source statement regard the nature and severity of Plaintiff's physical impairments on December 15, 2008. (Doc. 13-8 at 23-25). He opined Plaintiff had a "fair to poor" prognosis based upon the following diagnoses: cervicobrachial syndrome, lateral epicondylitis, medial epicondylitis, and carpal tunnel syndrome. Id. at 23. Dr. Schwartz noted Plaintiff's symptoms included "numbness in both hands & fingers" as well as "severe pain" in her neck, left shoulder blade, left axilla and both elbows. Id. Dr. Schwartz 2 estimated Plaintiff's level of pain and fatigue to be 7-10, where "0" equaled "none" and "10" equaled 3

"severe." Id. According to Dr. Schwartz, Plaintiff had the ability to sit, stand, or walk up to two hours 4 in an eight-hour day. Id. at 24. He opined Plaintiff had limitations "in doing repetitive reaching, 5 handling, fingering, or lifting," and she was unable to lift and carry less than ten pounds. Id. Further, 6

Dr. Schwartz believed Plaintiff was incapable of low stress because her "chronic pain conditions . . . 7 lead[] to depression." Id. at 25. Dr. Schwartz concluded Plaintiff was unable to perform work on a 8 sustained basis, and had been unable to do so since February 17, 2004. Id. at 25-26. 9

On December 26, 2008, Dr. Brian Ginsburg reviewed the record and completed a physical residual functional capacity assessment. (Doc. 13-8 at 27-35). Dr. Ginsburg found Plaintiff had the ability to lift and/or carry ten pounds frequently and twenty pounds occasionally, to stand and/or walk with normal breaks for a total of about six hours in an eight-hour day, and to sit about six hours in an eight-hour day. Id. at 28. He determined Plaintiff's ability to push or pull was unlimited, although she had limitations with handling (gross manipulation) and fingering (fine manipulation). Id. at 28-29.

Dr. Ginsburg opined Plaintiff did not have postural, visual, communicative, or environmental limitations. Id. at 28-30. According to Dr. Ginsburg, Plaintiff demonstrated a "lack of credibility" given "the discrepancy between the sitting [and] supine measurements which should be the same," and she did not fully participate in the consultative examination. Id. at 34-35. He concluded "a Light RFC [with] frequent basic light gross handling [and] frequent fine fingering is quite appropriate." Id. at 35.

Upon referral from Dr. Schwartz, Dr. Clyde Burch performed a psychological pain management evaluation on January 15, 2009. (Doc. 13-8 at 36-40). On a scale of 0 to 10 "with a pain level of 3 judged to be tolerable," Plaintiff reported her arm, neck, and shoulder pain were "a 10 most of the time;" her mid-back pain was "a 6 most of the time;" leg pain was "a 9 most of the time;" headaches were "a 5;" stomach pain was "an 8 most of the time;" and chest pain was "a 2 most of the time." Id. at 37. He observed Plaintiff "was very tearful," but displayed "no obvious evidence of impairment in memory, attention." Id. Dr. Burch concluded Plaintiff was "debilitated both physically and emotionally/psychologically, consistent with a chronic pain behavior syndrome (i.e. pain disorder associated with both psychological factors and medical condition), including ...

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