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Gutierrez v. Berryhill

United States District Court, E.D. California

June 29, 2017

MARIBEL GUTIERREZ, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.

          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

         Plaintiff 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.

         BACKGROUND

         Plaintiff 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.

         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

         Plaintiff 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)

         In July 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.)

         In 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)

         Plaintiff 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., emphasis omitted)

         Between 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)

         Plaintiff 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.”

         In May 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 maintained.” (Id.)

         Dr. 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 lower ...


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