Garcia v. Colvin

          MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER

          JEAN ROSENBLUTH U.S. Magistrate Judge

         I. PROCEEDINGS

         Plaintiff seeks review of the Commissioner’s final decision denying his application for Social Security disability insurance benefits (“DIB”). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). The matter is before the Court on the parties’ Joint Stipulation, filed January 19, 2016, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner’s decision is affirmed.

         II. BACKGROUND

         Plaintiff was born in 1955. (Administrative Record (“AR”) 150.) He completed sixth grade and worked as a waiter. (AR 167.)

         On June 25, 2012, Plaintiff applied for DIB, alleging that he had been unable to work since June 10, 2010, because of back pain, right-shoulder and -leg pain, high cholesterol, and high blood pressure. (AR 17, 77-78, 150-53, 166.) After his application was denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge. (AR 89-90.) A hearing was held on November 13, 2013, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert and two medical experts. (AR 39-66.) In a written decision issued November 19, 2013, the ALJ found Plaintiff not disabled. (AR 17-29.) On March 27, 2015, the Appeals Council denied Plaintiff’s request for review. (AR 1-5.) This action followed.

         III. STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. The ALJ’s findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court “must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). “If the evidence can reasonably support either affirming or reversing, ” the reviewing court “may not substitute its judgment” for the Commissioner’s. Id. at 720-21.

         IV. THE EVALUATION OF DISABILITY

         People are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

         A. The Five-Step Evaluation Process

         The ALJ follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(i).

         If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a “severe” impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, the claimant is not disabled and his claim must be denied. § 404.1520(a)(4)(ii).

         If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed. § 404.1520(a)(4)(iii).

         If the claimant’s impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity (“RFC”)^[1] to perform his past work; if so, he is not disabled and the claim must be denied. § 404.1520(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id.

         If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. § 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257. That determination comprises the fifth and final step in the sequential analysis. § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

         B. The ALJ’s Application of the Five-Step Process

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since June 10, 2010, the alleged onset date. (AR 19.) At step two, he concluded that Plaintiff had the severe impairments of tendonitis and low-back pain. (AR 20.) The ALJ found that Plaintiff’s gastrointestinal reflux disease and mental impairments were nonsevere (AR 20-23), findings Plaintiff does not challenge. At step three, the ALJ determined that Plaintiff’s impairments did not meet or equal any of the impairments in the Listing. (AR 23.) At step four, he found that Plaintiff had the RFC to perform “a wide range of light work”; specifically, he could

lift and carry 20 pounds occasionally and 10 pounds frequently; stand, walk and sit each up to 6 hours in . . . an 8-hour workday, with normal breaks; push and pull with the right upper extremity occasionally; never climb a ladder, rope or scaffolds; climb a ramp and stairs occasionally; balance, stoop, kneel, crouch and crawl occasionally; and, unable to reach at or above shoulder level with the right upper extremity.

(AR 23.) Based on the VE’s testimony, the ALJ concluded that Plaintiff could perform his past relevant work as a waiter. (AR 28.) He also found that Plaintiff could perform other work in the economy. (AR 29.) Accordingly, the ALJ found Plaintiff not disabled. (Id.)

         V. DISCUSSION

         Plaintiff contends that the ALJ erred in (1) rejecting the opinion of his treating physician, Dr. William To, and (2) discounting his subjective complaints. (J. Stip. at 2-3.) For the reasons discussed below, remand is not warranted.

         A. The ALJ Properly Assessed the Medical Evidence

         Plaintiff argues that the ALJ should have credited Dr. To’s assessment of Plaintiff’s physical limitations and need for a cane because it was well supported by the medical evidence and uncontradicted by the opinion of any treating or examining physician. (J. Stip. at 3-10, 8-10.)

         1. Applicable law

         Three types of physicians may offer opinions in Social Security cases: (1) those who directly treated the plaintiff, (2) those who examined but did not treat the plaintiff, and (3) those who did neither. Lester, 81 F.3d at 830. A treating physician’s opinion is generally entitled to more weight than an examining physician’s, and an examining ...