United States District Court, E.D. California
ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF
DEFENDANT, NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL
SECURITY, AND AGAINST PLAINTIFF MARIBEL GUTIERREZ
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
Maribel Gutierrez asserts she is entitled to disability
insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act. Plaintiff seeks
judicial review of the decision denying her applications for
benefits, asserting the administrative law judge
(“ALJ”) erred in evaluating the medical record.
Because the ALJ applied the proper legal standards and the
decision is supported by substantial evidence in the record,
the administrative decision is AFFIRMED.
filed applications for benefits on February 29, 2012, in
which she alleged disability beginning December 9, 2009.
(Doc. 9-3 at 21) The Social Security Administration denied
the applications at the initial level and upon
reconsideration. (Id.; Doc. 10-5 at 2-6, 10-14)
Plaintiff requested a hearing, and testified before an ALJ on
April 19, 2013. (Doc. 9-3 at 21, 43) The ALJ determined
Plaintiff was not disabled under the Social Security Act, and
issued an order denying benefits on May 31, 2013.
(Id. at 21-32) Plaintiff filed a request for review
of the decision with the Appeals Council, which denied the
request on October 8, 2014. (Id. at 2-4) Therefore,
the ALJ's determination became the final decision of the
Commissioner of Social Security.
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).
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).
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).
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.
Relevant Medical Evidence
slipped and fell while working on November 30, 2007, and
suffered a tibial plateau fracture. (Doc. 11-9 at 49) The
following month, Plaintiff had an “[o]pen reduction and
internal fixation of [the] fracture, ” for the
placement of “a locking tibial buttress plate.”
(Id.) Plaintiff returned to work on March 10, 2018
but “complained of persistent leg pain and also low
back pain.” (Id. at 76)
2009, Plaintiff underwent x-rays on her left knee. (Doc. 11-9
at 10) Dr. Hon Woo opined Plaintiff had “[s]light
narrowing of the medial joint space.” (Id.)
Dr. Woo found “no loosening of the surgical
hardware” and no “significant spurs or
erosions… at the joint space.” (Id.)
October 2009, Plaintiff was diagnosed with “internal
derangement with symptomatic hardware” and her
physicians determined the plate needed to be removed.
(See Doc. 11-9 at 4-5, 42-44) Dr. Peter Simonian
performed the hardware removal on December 10, noting he took
out “7 screws and 1 plate” during the procedure.
(Id. at 5)
received a referral to physical therapy, which she began on
January 5, 2010. (See Doc. 11-9 at 55-56) On
February 11, Chris Lewis, the physical therapist, determined
that Plaintiff showed “some progress” with
decreasing her pain and increasing her range of motion,
strength, and function. (Id. at 55) On February 24,
Plaintiff again reported a decrease in pain and demonstrated
additional progress with increasing strength. (Id.
at 52) Mr. Lewis noted that Plaintiff's range of motion
remained the same but Plaintiff “tolerated treatment
well.” (Id.) In March 2010, Mr. Lewis noted
Plaintiff had “shown good overall progress”
though she had “continued complaints of left knee pain
especially with increased time up on feet and at end range
flexion.” (Id. at 51, emphasis omitted) In
addition, he found “good progress in strength and
tolerance to [the] exercise program, ” noting pain was
the “primary limiting factor.” (Id.,
March 18 and April 1, 2010, Plaintiff received three Euflexxa
injections in her left knee. (Doc. 11-9 at 23-34) Although
Plaintiff requested Norco, Dr. Simonian informed her that he
“would rather not continue to give pain medication on a
regular basis for a chronic condition like arthritis.”
(Id. at 34)
had an MRI taken on her left knee on April 19, 2010. (Doc.
11-9 at 31) The MRI showed Plaintiff had “mild
arthritis” and “otherwise no significant
abnormalities.” (Id.) Upon examination, Dr.
Simonian found Plaintiff had “mild discomfort”
with medial and lateral movements.”
2010, Plaintiff again had x-rays taken of her left knee.
(Doc. 11-9 at 12) Dr. Woo determined Plaintiff had
“[m]ild narrowing at the medial joint space.”
(Id.) Dr. Woo compared the images to those taken in
July 2009, and noted Plaintiff's facture
“appear[ed] to be completely healed.”
(Id.) Further, Dr. Woo opined that Plaintiff's
“lateral and patellofemoral joints appear[ed] fairly
Michael Charles performed a consultative examination related
to Plaintiff's workers' compensation claim on July
19, 2010. (Doc. 11-13 at 48-53) Plaintiff reported she had
“severe sharp stabbing pain on a daily basis” in
her left knee, which was “made worse with bending,
walking and squatting.” (Id. at 50) In
addition, she told Dr. Charles she had “sharp, stabbing
pains” in her right knee and neck. (Id.) Dr.
Charles noted that Plaintiff “walk[ed] into the
examining room with a cane, hunched forward, [with an]
antalgic gait, favoring the left lower extremity.”
(Id. at 51) Dr. Charles found Plaintiff “had
tenderness throughout the cervical and lumbar region, ”
and “diffuse tenderness” in the left knee.
(Id.) Based upon his review of prior x-rays, Dr.
Charles believed that Plaintiff's pain from the hardware
was caused by a screw being placed “much too long,
” and “impinging into the soft tissue of her