United States District Court, C.D. California
ESTEBAN C. HURTADO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
SAGAR UNITED STATES MAGISTRATE JUDGE
April 30, 2016, Plaintiff Esteban C. Hurtado
(“Plaintiff”) filed a Complaint, seeking review
of the Commissioner's denial of Plaintiff's
application for a period of disability, disability insurance
benefits (“DIB”), and supplemental security
income (“SSI”). (Docket Entry No 1). On September
27, 2016, Defendant filed an Answer to the Complaint, (Docket
Entry No. 17), and the Certified Administrative Record
(“AR”). (Docket Entry No. 18). The parties have
consented to proceed before a United States Magistrate Judge.
(Docket Entry Nos. 12-13). On February 13, 2017, the parties
filed a Joint Stipulation (“Joint Stip.”),
setting forth their respective positions on Plaintiff's
claims. (Docket Entry No. 21).
reasons discussed below, the decision of the Administrative
Law Judge is AFFIRMED.
AND SUMMARY OF ADMINISTRATIVE DECISION
asserts disability beginning July 28, 2008, based on alleged
physical and mental health impairments related to back pain
and testicular cancer. (AR 228, 232). On August 18, 2014, the
Administrative Law Judge (“ALJ”), Marti Kirby,
examined the record and heard testimony from Plaintiff and
vocational expert (“VE”), Howard Goldfarb. (AR
39-56). On October 8, 2014, the ALJ denied Plaintiff benefits
in a written decision. (AR 20-43).
applied the five-step sequential process in evaluating
Plaintiff's case. (AR 26-35). At step one, the ALJ
determined that Plaintiff had not engaged in substantial
gainful activity after the alleged onset date. (AR 28). At
step two, the ALJ found that Plaintiff has the severe
impairments of lumbago, disc protrusion with mild bilateral
foraminal stenosis at ¶ 3-4, and lumbosacral neuritis or
radiculitis. (AR 28). At step three, the ALJ found that
Plaintiff's impairments did not meet or equal a listing
found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 29).
Before proceeding to step four, the ALJ found that Plaintiff
had the residual functional capacity
(“RFC”) to perform light work, but can lift 20
pounds occasionally and 10 pounds frequently; stand, walk,
and sit for six hours in an eight-hour workday with regular
breaks; must change positions approximately every hour for
five minutes; climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl occasionally; cannot climb ladders, ropes,
or scaffolds; cannot work around unprotected heights,
machinery, or other hazards; cannot perform jobs requiring
hypervigilance or intense concentration on a particular task;
cannot perform fast paced, production, or assembly line work;
and would likely be off task up to 10 percent of the workday
or workweek due to chronic pain or side effects from
medication. (AR 29).
making this finding, the ALJ determined that Plaintiff's
allegations concerning the intensity, persistence, and
limiting effects of his symptoms were less than fully
credible for the following reasons: (1) Plaintiff had
significant gaps in treatment from 2009 to 2011, and in 2013,
Plaintiff admitted to “no longer receiving any
treatment” but still had medical insurance; (2) the
objective medical evidence did not support Plaintiff's
allegations, although recognizing that diagnostic imaging
revealed moderate to severe degenerative disc disease of the
lumbar spine, physical examinations showed no neurological
deficits and there were no surgeries; and (3) Plaintiff
admitted to performing activities that were inconsistent with
his alleged symptoms, such as lifting 20 pounds repetitively
“without pain” and wanting to return to work
because he was “pain free.” (AR 31).
also considered Plaintiff's medical record surmising that
it reflected a history of back pain, which was the product of
repetitive work injuries. (AR 31). Plaintiff did not seek any
treatment from 2009 to 2011, which suggested that his
“symptoms were not particularly troublesome.”
(Id.). The ALJ found Plaintiff had a limited range
of motion in the lumbar spine but physical examinations
otherwise showed normal results. (AR 32). On November 10,
2011, consultative examiner, Dr. Terrance Flanagan, M.D.,
noted that Plaintiff was able to sit and stand with normal
posture, rise out of a chair without difficulty, had a normal
gait, and no paraspinal spasms. (AR 280-82). However,
Plaintiff had pain with axial rotation of the trunk, could
not walk on his tiptoes, and had somewhat irregular forward
flexion and extension. (AR 281-82). On April 20, 2012, an
x-ray and MRI of Plaintiff's lumbar spine showed moderate
to severe degenerative disc disease at ¶ 5-S1, moderate
disc space narrowing at ¶ 4-5, and a 4 millimeter disc
and osteophyte protrusion with mild bilateral foraminal
stenosis at ¶ 3-4. (AR 295-97). On August 8, 2012, pain
specialist, Dr. Jos Santz, M.D., examined Plaintiff. (AR
299). Plaintiff had tenderness to palpation, a limited range
of motion, positive Faber's testing,  and normal
neurological limits. (AR 299-300). Plaintiff told Dr. Santz
that he was not in pain, could lift 20 pounds repetitively,
and wanted to return to work. Dr. Santz recommended more
physical therapy, but Plaintiff declined. (AR 300). On
February 13, 2013, consultative examiner, Dr. Vicente R.
Bernabe, D.O., examined Plaintiff. Dr. Bernarbe noted that
Plaintiff was not receiving treatment for his condition and
had a normal gait, slight decrease in range of motion,
tenderness to palpation, and 5 out of 5 motor strength. (AR
306-08). On July 12, 2013, Plaintiff's treating
physician, Dr. Pablo Sobero, M.D., examined Plaintiff finding
normal results, except Plaintiff had a slight limp and used a
cane. (AR 317).
then considered the opinions of treating and nontreating
physicians. The ALJ gave some weight to the opinion of
Plaintiff's pain management specialist, Dr. Santz, in
adopting his opinion that Plaintiff can lift and carry 20
pounds and perform overhead lifting, but he rejected Dr.
Santz's opinion that Plaintiff can bend, twist, and
engage in prolonged standing and kneeling. (AR 32). The ALJ
gave little weight to the opinions of Plaintiff's
treating physician, Dr. Sobero, orthopedic consultative
examiners, Dr. Flanagan and Dr. Bernarbe, and state agency
medical consultants. (AR 33).
four, the ALJ adopted the VE's testimony in finding that
Plaintiff could perform his past relevant work as file clerk
(Dictionary of Occupational Titles (“DOT”)
206.387-034) as actually and generally performed. (AR 33-34).
At the hearing, the VE testified that he took into account
Plaintiff's exertional and nonexertional limitations and
reviewed Plaintiff's work history reports in concluding
that Plaintiff could perform the duties of file clerk. (AR
49-53). Plaintiff made no objection to the VE's
characterization of Plaintiff's past work at the hearing.
(See AR 54). As a result of these findings, the ALJ
concluded that Plaintiff was not disabled. (AR 34).
requested that the Appeals Council review the ALJ's
decision. (AR 18-19). The request was denied on March 14,
2016. (AR 1-5). The ALJ's decision then became the final
decision of the Commissioner, allowing this Court to review
the decision. See 42 U.S.C. §§ 405(g),
Court reviews the Administration's decision to determine
if it is free of legal error and supported by substantial
evidence. See Brewes v. Commissioner of Social Sec.
Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).
“Substantial evidence” is more than a mere
scintilla, but less than a preponderance. Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To assess
whether substantial evidence supports a finding, “a
court must consider the record as a whole, weighing both
evidence that supports and evidence that detracts from the
[Commissioner's] conclusion.” Aukland v.
Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). As a
result, “[i]f the evidence can reasonably support
either affirming or reversing the ALJ's conclusion, [a
court] may not substitute [its] judgment for that of the
ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006).