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Hurtado v. Berryhill

United States District Court, C.D. California

May 12, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.




         On 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).

         For the reasons discussed below, the decision of the Administrative Law Judge is AFFIRMED.


         Plaintiff 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).

         The ALJ 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”)[2] 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).

         In 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).

         The ALJ 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, [3] 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).

         The ALJ 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).

         At step 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).

         Plaintiff 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), 1383(c).


         This 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).

         PLAINTIFF'S ...

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