United States District Court, E.D. California
MOLLIE C. PEREZ, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF
DEFENDANT CAROLYN COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
Mollie
Christine Perez asserts she is entitled to period of
disability and disability insurance benefits under Title II
of the Social Security Act. Plaintiff argues the
administrative law judge erred in evaluating the medical
record and in rejecting the credibility of her subjective
complaints. Because the ALJ applied the proper legal
standards and substantial evidence supports the
determination, the administrative decision is AFFIRMED.
BACKGROUND
On
February 3, 2011, Plaintiff filed applications for benefits,
in which she alleged disability beginning July 25, 2010.
(Doc. 16 at 2.) The Social Security Administration denied
Plaintiff’s claim for benefits at the initial level on
July 13, 2011, and upon reconsideration on February 6, 2012.
(Doc. 13-4 at 87, 98.) Plaintiff requested a hearing, and
testified before an administrative law judge
(“ALJ”) on October 18, 2012. (Doc. 13-3 at 55.)
On October 24, 2012, the ALJ denied her claim. (Doc. 13-4 at
37.)
The
Appeals Council reviewed Plaintiff’s case and remanded
for a new hearing. (Id. at 44.) Plaintiff again
testified before an ALJ on May 6, 2014. (Doc. 13-3 at 12.)
The ALJ issued a decision denying Plaintiff’s
application for benefits on August 15, 2014. (Id. at
20.) Plaintiff requested for review of the decision once
more, but the Appeals Council denied the request on December
12, 2014. (Id. at 2.) Therefore, the ALJ’s
determination became the final decision of the Commissioner
of Social Security (“Commissioner”).
STANDARD
OF REVIEW
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).
DISABILITY
BENEFITS
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:
his 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. Sullivan,
903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant
establishes a prima facie case of disability, the burden
shifts to the Commissioner to prove the claimant is able to
engage in other substantial gainful employment. Maounis
v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).
ADMINISTRATIVE
DETERMINATION
To
achieve uniform decisions, the Commissioner established a
sequential five-step process for 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 and
objective medical evidence. 20 C.F.R. §§ 404.1527,
416.927.
A.
Relevant Medical Evidence
In
August 2009, Plaintiff sought treatment at the Northwest
Medical Group, reporting that “for the last 2-3 years
she [had] been having left should pain with radiation between
should blades on/off.” (Doc. 13-8 at 39.) She described
the pain as a “dull ache, constant, ” which
changed to a “stabbing” pain with movement.
(Id.) Dr. Martin Wenthe determined Plaintiff had
“[b]ilteral middle paraspinal muscle tenderness,
” “[m]ildly reduced flexion, ” and
“mildly reduced left lateral motion.”
(Id.) He referred Plaintiff to physical therapy.
(Id. at 40.)
Plaintiff
attended six physical therapy sessions with Michael Jimenez
for treatment of her neck and shoulder pain. (Doc. 13-8 at
2.) On September 29, 2009, Mr. Jimenez noted that Plaintiff
“demonstrated ongoing palpatory tenderness of bilateral
supraspinatus and bicep tendon insertions of shoulder,
indicative of ongoing inflammation.” (Id.)
However, Plaintiff reported her shoulders were “doing
better and were no longer ‘achy’ at rest.”
(Id.) Plaintiff requested that she be discharged
from physical therapy, reporting she was “unable to
afford [it]… secondary to a high deductible and
financial constraints.” (Id.) Mr. Jimenez
believed Plaintiff would experience “ongoing
inflammation should she neglect treatment of her condition,
” but discharged Plaintiff as requested. (Id.)
In
October 2009, Plaintiff complained of fatigue, fever, and
shortness of breath. (Doc. 13-8 at 34, 25) Dr. Matthew Lozano
ordered x-rays, and found “[n]o active disease”
in the chest. (Id. at 34) However, he determined
Plaintiff had degenerative disc disease in the thoracic
spine. (Id.)
On
February 2, 2010, Alison Lansing, a marriage and family
therapist, conducted a diagnostic interview with Plaintiff,
“who requested therapy due to stress at work.”
(Doc. 13-8 at 7, 9.) Plaintiff reported she worked as a group
travel agent, and had an “increased work load”
after the company laid off some employees. (Id.) She
reported being overwhelmed, having “panic attacks at
work and at home, ” “decreased energy, difficulty
concentrating at work, ” and feeling tired.
(Id.) Plaintiff said she could not “remember
the last time she slept through the night, ” and when
she awakened, she felt tense and “beaten up in
shoulders and back.” (Id.) Plaintiff had her
first therapy session with Ms. Lansing on February 8, at
which Plaintiff reported she felt “anxious from
work” and “scatterbrained, distracted” over
the weekend. (Id.)
On
February 10, 2010, Dr. Lozano examined Plaintiff and found
she had “bilateral middle paraspinal muscle tenderness,
“mildly reduced flexion, ” and “left
lateral motion.” (Doc. 13-8 at 19.) He also noted
Plaintiff reported depression, anxiety, and insomnia.
(Id.) Dr. Lozano found no change in
Plaintiff’s personality, “no memory problems, no
mood swings, … [and] no suicide ideation.”
(Id.) He prescribed sleeping medication to
Plaintiff. (Id. at 5.)
On
February 18, 2010, Plaintiff told Ms. Lansing she did not
have any panic attacks during the prior week. (Doc. 13-8 at
5.) Plaintiff said she was sleeping longer with the
prescribed mediation, but was “still very tired.”
(Id.) Ms. Lansing opined Plaintiff had a major
depressive disorder and an anxiety disorder, not otherwise
specified. (Id. at 10) She noted Plaintiff’s
goal was to decrease her anxiety and stress, and believed
Plaintiff’s prognosis was “good.”
(Id.) In March 2010, Plaintiff continued to report
she was “doing better with [anxiety]” and
“sleeping better, ” though still tired.
(Id. at 4) Plaintiff then discontinued her therapy
sessions with Ms. Lansing, stating she “want[ed] to
catch up on copays” and would “call when ready to
[return].” (Id. at 3)
Dr.
Lozano examined Plaintiff on March 30, 2010, and found she
was “[o]riented to person, place, time and general
circumstance.” (Doc. 13-8 at 16.) Dr. Lozano opined
Plaintiff’s mood was “appropriate” and she
exhibited “[n]ormal judgment and insight.”
(Id.)
On July
30, 2010, Plaintiff told Dr. Lozano that her anxiety had
increased, and she felt “emotionally paralyzed.”
(Doc. 13-8 at 44.) She also told Dr. Lozano that she
“[w]ould rather not work.” (Id.)
Plaintiff reported “[n]o change in personality, no
memory problems, [and] no mood swings.” (Id.
at 45.) According to Dr. Lozano, Plaintiff was
“[o]riented to person, place, time and general
circumstances.” (Id.) In addition, Plaintiff
exhibited normal judgment and insight. (Id.) He
recommended Plaintiff see a counsellor and would “need
to take time off.” (Id. at 46.)
On May
5, 2011, Dr. Rustom Damania a conducted a consultative
physical examination of Plaintiff. (Doc. 13-8 at 48- 53.)
Plaintiff complained of having “joint pains for one
year, ” “psychiatric problems, hyperlipidemia and
obesity.” (Id. at 48.) Plaintiff reported the
only medication she was taking was Excedrin and Advil PM.
(Id.) Dr. Damania observed that Plaintiff was
“a well-developed, obese female in no distress, ”
and “was alert, cooperative and well-oriented in all
spheres.” (Id. at 50.) Dr. Damania found
“no tenderness to palpation in the midline or
paraspinal areas” and “no muscle spasm.”
(Id.) Plaintiff’s range of motion was normal
in her back, shoulders, elbows, and hands. (Id. at
51.) In addition, Dr. Damania determined Plaintiff had
“good active tone” and her strength was
“5/5 in all extremities.” (Id. at 52.)
Dr. Damania concluded: “The patient should be able to
lift and carry 20 pounds occasionally and 10 pounds
frequently. The patient can stand and walk six hours out of
an eight hour work day with normal breaks. The patient can
sit six hours.” (Id. at 53.) Dr. Damania did
not find any postural, manipulative, visual, or communicative
impairments. (Id.)
Dr.
Sadda Reddy reviewed Plaintiff’s medical record on May
19, 2011. (Doc. 13-8 at 54-56.) Dr. Reddy opined there were
“no treatment records to support [Plaintiff’s]
allegations of pain.” (Id. at 54.) In
addition, Dr. Reddy observed that Plaintiff had a
“[n]ormal exam of all joints including fingers”
as well as “[n]ormal strength, sensation and
gait.” (Id. at 56.) According to Dr. Reddy,
the limitation to light work-as recommended by Dr.
Damania-had “no objective basis considering a normal
physical exam.” (Id.)
On May
23, 2011, Plaintiff went to Dr. Lozano, complaining of
seasonal allergies, anxiety, and joint pain. (Doc. 13-8 at
85-86.) Dr. Lozano observed that Plaintiff was
“[o]riented to person, place, time and general
circumstances, ” and Plaintiff continued to have an
“appropriate” mood and affect with
“[n]ormal judgement and insight.” (Id.
at 86.)
Dr.
Steven Swanson conducted a psychological assessment on May
24, 2011. (Doc. 13-8 at 57.) He administered the Wechsler
Adult Intelligence Scale-Fourth Edition (WAIS-IV), Wechsler
Memory Scale-Fourth Edition (WMS-IV), Bender Visual-Motor
Gestalt Test, 2nd Ed. (Bender-Gestalt II), and
Trail Making Test. (Id. at 57-58.) The plaitntiff
told Dr. Swanson that she was not taking any medication, and
could not afford the prescribed anti-depressant.
(Id. at 58-59.) Plaintiff said she was
“independently able to complete all activities of daily
living, ” and spent her day reading, doing crossword
puzzles, on the computer, and visiting the library.
(Id. at 59.) Dr. Swanson found Plaintiff’s
“[s]hort-term, recent, and remote memories were within
normal limits.” (Id.) Also, he determined
Plaintiff had a full scale I.Q. of 89 with the WAIS-IV, and
her WMS-IV scores did “not reveal relative weakness in
memory functioning.” (Id. at 61.) Dr. Swanson
believed Plaintiff “maintained satisfactory attention
and concentration and the results [were] considered a valid
representation of her functioning.” (Id. at
60.) He concluded Plaintiff’s “mental and
emotional functioning [fell] within normal limits.”
(Id. at 62.)
Dr.
Rosalia Pereya completed a psychiatric review technique form
on July 6, 2011. (Doc. 13-8 at 65.) She believed Plaintiff
had an adjustment disorder with an anxious and depressed
mood, but this caused no restrictions on her activities of
daily living; no difficulties maintaining social functioning;
no difficulties in maintaining concentration, persistence, or
pace. (Id. at 68, 75.) Dr. Pereya noted Plaintiff
was not taking psychiatric medication, and concluded her
symptoms were not severe. (Id. at 77.)
In
September 2011, Plaintiff returned to Northwest Medical Group
for treatment. (Doc. 13-8 at 81-83.) Plaintiff reported her
anxiety was “getting worse” and she was
“[h]aving trouble getting out of the house.”
(Id. at 81.) Dr. Lozano believed Plaintiff exhibited
normal judgement and insight, but appeared “depressed,
anxious, [and] apprehensive.” (Id. at 82.) He
prescribed Cymbalta for Plaintiff, and recommended she
“check in” with her counselor. (Id. at
83.)
In
November 2011, Plaintiff told Dr. Lozano that she
“[c]ould not take the cymbalta with[out feeling]
[n]ausea and feeling weird.” (Doc. 13-8 at 89.) She
stopped taking the medication and “[t]hen got very
depressed.” (Id.) Dr. Lozano observed
Plaintiff appeared depressed, but was “not
nervous/anxious.” (Id.) Further, Dr. Lozano
opined Plaintiff’s memory, cognition, and judgment were
normal. (Id.)
Dr.
Ernest Wong reviewed the record and completed a case analysis
on December 27, 2011. (Doc. 13-8 at 93.) Dr. Wong observed
that Plaintiff “doesn’t allege any physical
issues” and “overall” her examination
results were “completely” normal. (Id.)
Dr. Wong concluded Plaintiff’s physical impairments
were not severe. (Id.)
Dr.
Frances Breslin completed a psychiatric review technique form
and mental residual functional capacity assessment on January
7, 2012. (Doc. 13-8 at 94-112.) Dr. Breslin opined Plaintiff
suffered from an adjustment disorder with mixed anxiety
depressed mood. (Id. at 97.) Dr. Breslin believed
Plaintiff had mild restriction of activities of daily living;
mild difficulties in maintaining social functioning; and
moderate difficulties in maintaining concentration,
persistence or pace. (Id. at 104.) Specifically, Dr.
Breslin indicated Plaintiff was “not significantly
limited” in all areas of understanding, memory,
concentration, persistence, and social interaction.
(Id. at 109-11.) However, she was
“moderately” limited with “[t]he ability to
respond appropriately to changes in the work setting.”
(Id. at 111.) Dr. Breslin concluded Plaintiff was
able to “understand and remember simple and detailed
instructions.” (Id. at 112.) Additionally, Dr.
Breslin opined Plaintiff was able to “work a typical
8-hour workday, ” including appropriate interactions
with the public, peers, and supervisors. (Id.)
On
August 3, 2012, Plaintiff told Dr. Lozano that she was
“[f]eeling more anxiety over forms with SSI” and
her pain was worse. (Doc. 13-9 at 14.) She reported her
joints were “painful” and she had knee and
“mid back pain with movement.” (Id.)
Plaintiff reported she “[h]ad been unable to afford
testing.” (Id.) Dr. Lozano found Plaintiff
exhibited “decreased range of motion” in both
knees and her thoracic spine. (Id.)
On
August 6, 2012, Plaintiff visited Clinica Sierra Vista for
treatment. (Doc. 13-9 at 50.) She told Dr. Getta Ramesh that
she had “sharp and throbbing” pain in her knees,
which was “aggravated by bending, sitting and
walking.” (Id.) In addition, Plaintiff said
she had pain in her neck and back. (Id.) Dr. Ramesh
determined Plaintiff had a normal gait and “[n]ormal
range of motion, muscle strength, and stability in all
extremities with no pain on inspection.” (Id.
at 52.) Dr. Ramesh ordered x-rays of Plaintiff’s knees,
lumbar spine, and cervical spine. (Id. at 52, 55.)
Upon ...