Maureen Leeson v. Michael J Astrue, No. 2:2008cv00268 - Document 16 (C.D. Cal. 2008)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 MAUREEN LEESON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) ___________________________________) NO. CV 08-268-E MEMORANDUM OPINION 16 17 PROCEEDINGS 18 19 Plaintiff filed a Complaint on January 16, 2008, seeking review 20 of the Commissioner s denial of benefits. The parties filed a 21 Consent to Proceed Before a United States Magistrate Judge on 22 May 23, 2008. 23 24 Plaintiff filed a Motion for Summary Judgment or Remand on 25 June 20, 2008. Defendant filed Defendant s Motion for Summary 26 Judgment on September 4, 2008. 27 under submission without oral argument. 28 January 22, 2008. The Court has taken both motions See L.R. 7-15; Order, filed BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 1 2 Plaintiff, a physical therapist and college instructor in 3 4 physical therapy, filed an application for disability insurance 5 benefits on April 26, 2002 (Administrative Record ( A.R. ) 83-85). 6 Plaintiff alleged disability due to bilateral arm pain and swelling 7 since June 12, 2000 (A.R. 88-89). 8 continued through March 23, 2006 (A.R. 335).1 Plaintiff s insured status 9 10 The Social Security Administration denied Plaintiff s 11 application initially (A.R. 76). Plaintiff requested a hearing, which 12 an Administrative Law Judge ( ALJ ) conducted on November 19, 2002 13 (A.R. 68-75, 278-308). 14 testimony from Plaintiff, a medical expert, and a vocational expert 15 (A.R. 278-308). 16 decision, finding that Plaintiff had returned to her past relevant 17 work and had engaged in substantial gainful activity since the alleged 18 disability onset date (A.R. 40-41). 19 (A.R. 41). The ALJ examined the medical record and heard On January 21, 2003, the ALJ issued an unfavorable The ALJ therefore denied benefits 20 21 By order dated May 2, 2003, the Appeals Council vacated the 22 ALJ s January 21, 2003 decision and remanded the matter for further 23 proceedings (A.R. 21-23). 24 submitted evidence: (1) established that certain of the amounts shown 25 on Plaintiff s earnings statements were due to long-term disability The Appeals Council found that recently- 26 1 27 28 In order for Plaintiff to be eligible for disability benefits, Plaintiff must establish that she became disabled prior to the expiration of her insured status. See 42 U.S.C. § 416(i)(2)(C), 416(i)(3)(A); 20 C.F.R. 404.131(a). 2 1 insurance payments; and (2) suggested that any work activity after the 2 onset date was due to special accommodations from Plaintiff s employer 3 (A.R. 21).2 4 5 On remand, the ALJ found, without a further hearing, that the 6 record evidence demonstrated Plaintiff had performed substantial 7 gainful activity from at least January 2001 through May 2001 when 8 Plaintiff was teaching a physical therapy class (A.R. 14-15 9 (November 5, 2003 decision)). The ALJ further found that, by March 10 2002, Plaintiff was capable of performing her past relevant work as a 11 college instructor based on the earlier testimony of the medical and 12 vocational experts (A.R. 16-17). 13 the ALJ s November 5, 2003 decision (A.R. 382-84). The Appeals Council denied review of 14 15 On August 6, 2004, Plaintiff filed a complaint with this Court, 16 case number CV 04-6559-E, seeking review of the Commissioner s denial 17 of benefits. 18 four of 42 U.S.C. section 405(g), for further administrative 19 proceedings before a different ALJ (A.R. 392-93). 20 the ALJ should be instructed to: (1) give further consideration to 21 Plaintiff s residual functional capacity; (2) seek additional 22 vocational expert evidence regarding Plaintiff s past relevant work as The parties stipulated to a remand pursuant to sentence The parties agreed 23 24 25 26 27 28 2 In remanding, the Appeals Council ordered the ALJ to: (1) give further consideration to Plaintiff s work activity following the alleged onset date; (2) consider Plaintiff s treating source opinions (which were not previously discussed); (3) obtain additional evidence concerning Plaintiff s alleged impairments; (4) evaluate Plaintiff s subjective complaints; and (5) give further consideration to Plaintiff s residual functional capacity (A.R. 22). 3 1 a physical therapy instructor; and (3) as warranted, consider 2 Plaintiff s ability to do other work in the national economy (A.R. 3 393). 4 remanded the case to a new ALJ with instructions (A.R. 389-90, 398- 5 400). The Court issued a judgment of remand, and the Appeals Council 6 7 The new ALJ held a hearing on February 16, 2006 (A.R. 426-45). 8 The ALJ heard testimony from a vocational expert (Id.). Plaintiff was 9 not present and did not offer any additional testimony (A.R. 428). 10 Counsel for Plaintiff advised the ALJ that Plaintiff had returned to 11 work in 2004 and had authorized counsel to speak on Plaintiff s behalf 12 (Id.). 13 period of disability from June 12, 2000 through October 17, 2004, when 14 Plaintiff returned to work (A.R. 431). Counsel requested the ALJ to consider Plaintiff for a closed 15 16 On March 23, 2006, the ALJ issued an unfavorable decision (A.R. 17 327-36). The ALJ found that Plaintiff had engaged in substantial 18 gainful activity from January 12, 2001 through May 25, 2001 (A.R. 329- 19 30 (citing 20 C.F.R. 404.1573(b)). 20 2001 through October 17, 2004, when Plaintiff was not performing 21 substantial gainful activity, the ALJ found Plaintiff suffered from 22 severe impairments affecting her right wrist and left elbow, but those 23 impairments did not meet or equal a listed impairment (A.R. 330). For the closed period from May 25, 24 25 The ALJ assessed Plaintiff with a residual functional capacity 26 restricted by inability for more than simple gripping and minimal 27 power grasping and fine manipulation with the right upper (major) 28 extremity and an overall lifting restriction to a combined weight of 4 1 chest to overhead a total of about 25 pounds using both hands, minimal 2 pushing and pulling, and no extensive keyboarding (A.R. 335-36 3 (adopting treating physician s January 31, 2001 residual functional 4 capacity assessment at A.R. 131)). 5 Plaintiff s limitations could perform Plaintiff s past relevant work 6 as a physical therapy instructor as that job is normally performed in 7 the national economy (A.R. 334 (adopting vocational expert testimony 8 at A.R. 432-36 for a vocational ed instructor )). 9 ALJ found that a person with Plaintiff s limitations could perform 10 other unskilled light work existing in significant numbers in the 11 national economy (i.e., as a parking lot attendant or photocopy 12 machine operator) (A.R. 334-35 (adopting vocational expert testimony 13 at A.R. 436-37)). 14 Appeals Council denied review (A.R. 4-6). The ALJ found that a person with Alternatively, the The ALJ therefore denied benefits (A.R. 336). The 15 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. section 405(g), this Court reviews the 19 Administration s decision to determine if: (1) the Administration s 20 findings are supported by substantial evidence; and (2) the 21 Administration used proper legal standards. 22 924 F.2d 841, 846 (9th Cir. 1991); Swanson v. Secretary of Health and 23 Human Serv., 763 F.2d 1061, 1064 (9th Cir. 1985). 24 evidence is such relevant evidence as a reasonable mind might accept 25 as adequate to support a conclusion. 26 389, 401 (1971) (citation and quotations omitted). 27 /// 28 See DeLorme v. Sullivan, Substantial Richardson v. Perales, 402 U.S. This Court may not affirm [the Administration s] decision 5 1 simply by isolating a specific quantum of supporting evidence, but 2 must also consider evidence that detracts from [the Administration s] 3 conclusion. 4 (citation and quotations omitted). 5 findings supported by substantial evidence, even though there may 6 exist other evidence supporting Plaintiff s claim. 7 Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 8 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971). Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) However, the Court cannot disturb See Torske v. 9 10 DISCUSSION 11 12 After consideration of the record as a whole, Defendant s 13 motion is granted and Plaintiff s motion is denied. The 14 Administration s findings are supported by substantial evidence and 15 are free from material3 legal error. 16 17 I. Substantial Evidence Supports the Administrative Decision. 18 19 Entitlement to disability insurance benefits requires a 20 conclusion that a claimant s impairments are of such severity that he 21 is not only unable to do his previous work but cannot, considering his 22 age, education and work experience, engage in any other kind of 23 substantial gainful work which exists in the national economy. 24 25 26 27 28 3 The harmless error rule applies to the review administrative decisions regarding disability. See Curry Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990); see also Stout Commissioner, 454 F.3d 1050, 1054 (9th Cir. 2006); Batson Commissioner, 359 F.3d 1190, 1196 (9th Cir. 2004); Tonapetyan Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 6 of v. v. v. v. 1 42 U.S.C. § 423(d)(2)(A). As noted above, the ALJ found Plaintiff 2 capable of performing other work existing in the national economy for 3 the closed period from June 12, 2000 through October 17, 2004. 4 Substantial evidence supports this finding. 5 6 A. The Medical Record 7 8 9 The record contains a number of reports from orthopedic surgeon, Dr. John Itamura, who treated Plaintiff from June 9, 2000 10 through September 6, 2002 (A.R. 122-52, 255-61). Plaintiff first 11 presented with complaints of right wrist pain and left elbow pain with 12 lifting (A.R. 150). 13 right wrist and tenderness, but no instability (Id.). 14 diagnosed Plaintiff with medial epicondylitis, left, a subluxing 15 ulnar nerve, and cervical spondylosis (A.R. 151). 16 noted that further testing should be done to rule out [a] TFCC 17 [triangular fibrocartilage complex] tear in Plaintiff s right wrist 18 (A.R. 151, 160). 19 right wrist, Motrin and physical therapy (A.R. 151).4 An examination revealed a click in Plaintiff s Dr. Itamura Dr. Itamura He ordered magnetic resonance imaging of Plaintiff s 20 On June 21, 2000, Dr. Itamura reported that the MRI of 21 22 Plaintiff s right wrist confirmed a TFCC tear, for which he 23 recommended surgery (A.R. 163). 24 right wrist arthroscopy and synovectomy with debridement of the TFCC 25 tear to stabilize the wrist, and also received a steroid injection in On June 26, 2000, Plaintiff underwent 26 4 27 28 At the time of his initial examination, Dr. Itamura opined that Plaintiff should be precluded from lifting more than five pounds with her left upper extremity and should not lift anything with her right upper extremity (A.R. 151). 7 1 her left elbow medial epicondylar region (A.R. 160-62). When 2 Plaintiff returned to Dr. Itamura on July 14, 2000 for a post- 3 operative evaluation, Dr. Itamura reported that Plaintiff was doing 4 quite well with physical therapy and that her motion was better 5 (A.R. 155). 6 physical therapy (Id.). Dr. Itamura noted that Plaintiff should continue with her 7 8 9 On July 28, 2000, Plaintiff complained of subluxation of her right distal radioulnar joint (i.e., a partial dislocation in her 10 wrist, where her radius and ulna meet),5 which Dr. Itamura confirmed 11 on examination (A.R. 146; see also A.R. 143 (August 25, 2000 report 12 noting continued instability of the distal radioulnar joint)). 13 Otherwise, Plaintiff s motion was good and her swelling and 14 inflammation was down, with no noted tenderness (Id.). 15 September 20, 2000, Plaintiff reported that she still could not do 16 weight-bearing activity with her right wrist, but that she was 17 improving (A.R. 140). 18 Plaintiff s distal radioulnar joint did not seem to be as 19 subluxatable as before (Id.). 20 Plaintiff would remain totally temporarily disabled, given the large 21 amount of manual manipulation required by Plaintiff s work (A.R. 140- 22 41). On Dr. Itamura noted on examination that At that time, Dr. Itamura opined that As of October 18, 2000, Dr. Itamura s goal was to get Plaintiff 23 24 25 26 27 28 5 All anatomical explanations are from the illustrations of Gray s Anatomy of the Human Body (20th ed. 1918), available at http://www.bartleby.com/107 (last visited Sept. 24, 2008). 8 1 back to modified duty by December 2000 (A.R. 137).6 2 3 Dr. Itamura prepared a Permanent and Stationary Report on 4 January 31, 2001 shortly after plaintiff began teaching again (A.R. 5 130-32, 277). 6 with Dr. Itamura, with a return of burning pain (A.R. 130). 7 examination, Dr. Itamura noted that Plaintiff s ulnar head was more 8 prominent on her right side than on her left side in relaxed pronation 9 (Id.). Plaintiff had reported a flare since her last visit On Dr. Itamura also noted that Plaintiff s left elbow still had a 10 significant amount of lipid atrophy over her medial epicondyle and her 11 ulnar nerve was still subluxatable (Id.). 12 Plaintiff should have the following permanent restrictions: Dr. Itamura opined that 13 14 She can use her right upper extremity for simple 15 gripping, but fine manipulation and power grasping 16 should be kept to a minimal [sic]. 17 lifting restrictions should be a combined weight of 18 chest to overhead a total of about 25 pounds using both 19 hands. 20 minimal [sic]. In addition, her Pushing and pulling should also be kept to I do think that teaching duties would be 21 22 23 24 25 26 27 28 6 On November 17, 2000, notwithstanding Plaintiff s complaints of: (1) instability of her right distal radioulnar joint; (2) irritability of her right upper extremity with resulting temperature and color changes in the extremity; (3) irritability of her left ulnar nerve from loss of subcuticular fat in her left elbow due to the steroid injection; (4) decreased ability to weight bear with her right wrist and hand; (5) decreased strength and endurance in her right upper extremity; and (6) increased sensitivity and decreased tolerance of light touch and pressure to her left elbow, Dr. Itamura opined that Plaintiff could return to modified duty, excluding any manual physical therapy, as of December 1, 2000 (A.R. 135-36). 9 1 appropriate for her, however, extensive use of the 2 keyboard may be difficult for her. 3 4 (A.R. 131).7 5 6 On August 1, 2001, Dr. Itamura prepared an addendum to his 7 earlier permanent and stationary report (A.R. 124-26). Dr. Itamura 8 again reported that Plaintiff s problem is bilateral, explaining: 9 10 Her right upper extremity, she has problems with the 11 distal radioulnar joint. 12 when the forearm is in pronation, she cannot weightbear 13 [sic]. Because of the subluxation She has weakness and pain mostly ulnar sided. 14 15 Her left elbow, where I had injected her medial 16 epicondyle, with subsequent lipid necrosis and 17 sensitivity of her ulnar nerve. 18 her and injected her medial antebrachial cutaneous nerve 19 with good relief of her symptoms, however, following 20 that she had significant ulnar sided paraesthesias. 21 has significant problems, especially with flexion and 22 extension and weakness of her intrinsics. 23 the left upper extremity, the area of the lipid necrosis 24 is decreasing, however, she still has an area of atrophy 25 in the region of her medial epicondyle. Dr. Stevanovic had seen She On exam of 26 7 27 28 Dr. Itamura completed a form dated March 26, 2001 listing similar restrictions, including the 25-pound weight limit (A.R. 228). Where the form asked whether he expected the patient s condition to improve in the future, Dr. Itamara wrote ? (Id.). 10 1 (A.R. 124). Unlike his prior assessments, Dr. Itamura now opined that 2 Plaintiff should progress to lifting three pounds overhead, should 3 be limited to lifting floor to waist and waist to chest 10 pounds, and 4 to pulling five pounds, and should avoid prolonged gripping and 5 twisting of objects (A.R. 125).8 6 Residual Functional Capacity Questionnaire on October 15, 2002 7 reporting similar restrictions (A.R. 258-61 (noting that Plaintiff 8 could occasionally lift less than 10 pounds and never lift more, and 9 must periodically alternate between sitting and standing to relieve 10 left elbow irritation from being in a prolonged bent position)); see 11 also A.R. 421 (July 23, 2003 letter from Dr. Itamura noting that he 12 had reviewed Plaintiff s case and believed her restrictions remained Dr. Itamura completed a Physical 13 14 15 8 16 17 18 19 20 In a Supplemental Report dated April 1, 2002, Dr. Itamura summarized Plaintiff s elbow and wrist problems and opined that Plaintiff had lost 75 percent of her pre-injury capacity to lift, push, pull, torque, grasp and the use of finger dexterity of her upper extremities secondary to Plaintiff s injuries (A.R. 122). Dr. Itamura said that Plaintiff would not be able to put up with the repetitive stress which her occupation requires (Id.). The report contains no detail concerning any further testing that Dr. Itamura may have done to reach his opinion. 21 22 23 24 25 26 27 28 Dr. Itamura provided another Supplemental Report dated September 6, 2002 for Plaintiff s work-related disability claim (A.R. 255-57). Dr. Itamura explained that he felt Plaintiff had lost 75 percent of her pre-injury ability in her right upper extremity, and 15 percent loss for her use of finger dexterity, 50 percent loss for gross grip on repetition, and 75 percent loss of pre-injury capacity for two or three repetitions for lift, push, pull, torque and grasp in Plaintiff s left upper extremity (A.R. 255). Dr. Itamura suggested that Plaintiff should be given a lifetime gym membership for her physical therapy needs (A.R. 256). As with the earlier evaluations, Dr. Itamura s report did not provide any detail concerning any testing that may have been done to support Dr. Itamura s opinion (Id.). 11 1 the same as assessed on October 15, 2002)).9 2 3 Consultative examiner, Dr. Stuart Kuschner, evaluated Plaintiff 4 on March 25, 2002, for a second opinion concerning further surgery to 5 Plaintiff s right wrist (A.R. 231-32). 6 burning pain and spasm in her right forearm and into her shoulder and 7 right side of her neck, intermittent pain in the ulnar side of her 8 wrist and intermittent sympathetic changes in her right wrist, 9 forearm, and hand (A.R. 232). Plaintiff complained of Plaintiff reported an unstable right 10 distal radioulnar joint (with episodes of instability ), and 11 intermittent numbness and tingling in her fingers, alternating between 12 the ulnar and radial nerve origin (A.R. 232, 238). 13 reportedly went to the gym one to two hours per day, six days per week 14 for limited activities (A.R. 233). 15 inflammatory medication Mobic daily (A.R. 234). However, Plaintiff Plaintiff was taking the anti- 16 17 Upon examination, Dr. Kuschner noted that Plaintiff 18 demonstrated full range of motion of both elbows without a complaint 19 of pain, no pain with palpation over the lateral and medial epicondyle 20 of either elbow, and negative Tinel tests (A.R. 236). 21 right hand had a slight purplish discoloration of the digits, but 22 otherwise had no abnormal masses, swelling, erythema or ecchymosis 23 (A.R. 237). 24 bilaterally (Id.). Plaintiff s Phalen, Finkelstein and Provocative tests were negative, Plaintiff s grip strength on the right was 62, 74, 25 26 27 28 9 Plaintiff s physical therapist reported that Plaintiff would be unable to lift or carry more than five pounds given the instability of Plaintiff s right wrist (A.R. 250). The therapist, however, did not provide any of Plaintiff s physical therapy records. 12 1 and 62 pounds; left was 70, 65, and 62 pounds (Id.). Plaintiff 2 demonstrated full active range of motion of all digits of both hands 3 and full supination and pronation of both forearms (Id.). 4 Dr. Itamura previously had found, Dr. Kuschner noted a slight dorsal 5 prominence of the right distal ulna as compared to the left distal 6 ulna when Plaintiff s forearms were fully pronated (A.R. 238). 7 Dr. Kuschner, however, did not see any subluxation of the extensor 8 carpi ulnaris tendon with pronation/supination of the right forearm, 9 and noted that the right distal radial ulnar joint appeared grossly As 10 stable with stress testing (Id.). Radiology tests showed no evidence 11 of any gross carpal instability (Id.). 12 Plaintiff s treatment options were surgery or modified activities to 13 accommodate the distal radial ulnar joint instability pattern (Id.). 14 Dr. Kuschner s report does not identify how Plaintiff s activities 15 should be modified. Dr. Kuschner opined that 16 17 A state agency physician completed a Physical Residual 18 Functional Capacity Assessment for Plaintiff dated May 21, 2002, for a 19 limited range of light work (A.R. 240-47 (noting see consult )).10 20 Specifically, the physician opined that Plaintiff would be limited in 21 her upper extremities by preclusion from frequent forceful 22 23 24 25 26 27 28 10 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b); see also U.S. Department of Labor, Dictionary of Occupational Titles, Appendix C Components of the Definition Trailer (4th ed., Rev. 1991), http://www.oalj.dol.gov/PUBLIC/ DOT/REFERENCES/DOTAPPC.HTM (similarly defining light work). 13 1 grasping/twisting with [her] right hand and fingers (A.R. 241, 243). 2 The physician noted no other limitations. 3 4 B. The Medical Expert s Analysis of the Medical Record 5 6 At Plaintiff s first administrative hearing, the medical 7 expert, orthopedic surgeon Dr. Michael Gurvey, summarized the medical 8 record as follows: 9 10 [Plaintiff] has problems with the right and left upper 11 extremities. 12 extremity[,] she had arthroscopy for a tear of the 13 triangular fibrocartilage, and a partial [synovectomy] 14 with apparently good results. 15 extremity she has a history of subluxation of the right 16 distal radioulnar joint. 17 [Itamura] in [Exhibit] 1F, who I believe is the treating 18 doctor. 19 Dr. [Kuschner] who was a consultative examiner. 20 second area as to the left upper extremity she has a 21 chronic [epicondylitis], which is an inflammatory 22 reaction of the area of the elbow on the inner portion 23 with the tendons and muscles and (inaudible). 24 surgeries done about this. 25 subluxation of the left ulnar nerve of the elbow. 26 is no evidence, however, of neuropathy. 27 records and the first batch of data that I got as far as 28 examining doctors was Dr. [Kuschner], consulting The relative to the right upper On the right upper This was noted by Dr. It was noted in [Exhibit] 4F, dated 3/25/02 by The No There was some history of a 14 There Now the last 1 examiner in [Exhibit] 4F date 3/25/02. Subsequent 2 Exhibits 8F and 9F, former dated 9/6/02, the second, the 3 later 10/15/02, basically, dealt with Dr. [Itamura] 4 sending a supplemental report to Workman s Compensation. 5 It doesn t really go into any physical examination, 6 either of those two. 7 he eluded [sic] to in the prior exhibits. He lists some restrictions which 8 9 (A.R. 280-81). From his review of the record, Dr. Gurvey opined that 10 Plaintiff did not suffer from any ongoing disability (A.R. 282-83). 11 Dr. Gurvey opined that Plaintiff would be capable of light work with 12 mild to moderate limitations in her ability to push/pull, moderate 13 limitations in her right upper extremity for forceful grasping and 14 torquing, twisting moves, and mild limitations in her ability to do 15 repetitive forceful grasping and twisting moves with her upper left 16 extremity (A.R. 284 (noting the main difference between his assessment 17 and Dr. Itamura s last assessments of Plaintiff s capacity is the 18 amount of weight that Plaintiff could lift)).11 Dr. Gurvey confirmed 19 11 20 Dr. Gurvey disagreed with Dr. Itamura s September 2002 residual functional capacity assessment, explaining: 21 22 23 24 25 26 27 28 [Dr. Itamura] felt that she had lost 75% of her functional capacity in the left upper extremity for push/pull (inaudible) for repetitive motion on a repetitive basis. He felt that she lost 50% of her loss of grip. And 15% of loss of fingering. I don t agree with that based on the records, because there s no evidence of ulnar neuropathy, there s just evidence of pain about the elbow. I would agree that it would. . . create a problem relative to some repetitive grasping, twisting of the left upper extremity. I would have put it in the mild limitation category. And I don t believe the epicondylitis in itself has a problem with regard to (continued...) 15 1 that a person with an unstable distal radioulnar joint would be able 2 to lift up to 20 pounds 10 pounds with each arm (A.R. 286). 3 explained: He 4 5 [T]he problem is generally movement with the arm in a 6 pronated position, or with the palm down. 7 doesn t normally do lifting in that position. 8 can t. 9 the fact that there are some positions where one would So one You So I put it in the moderate category based on 10 lift with the, with the hands in the pronated situation. 11 In that instance, the joint could be unstable. 12 did it with the forearm supinated or palm up, that 13 stabilizes the situations not particularly unstable. 14 I think that s why I gave a moderate limitation. 15 it was not severe, it was not mild. 16 was a fair estimate, and I put it in that category 17 rather than giving percentages of what Dr. [Itamura] 18 said that s all. If one So I felt I thought moderate 19 20 (A.R. 286-87). 21 C. 22 The Vocational Expert s Testimony 23 The vocational expert testified that a person with the 24 25 26 27 28 11 (...continued) fine manipulation or fingering, so there s a problem there. (A.R. 283-84). 16 1 limitations Dr. Itamura first found to exist in January 2001 (less 2 than 12 months after the alleged onset date), adopted by the ALJ, 3 could perform work existing in the local economy as a parking lot 4 attendant or photocopy machine operator (A.R. 432, 435-37 (noting that 5 there are approximately 5,000 local parking lot attendant jobs and 6 2,500 local photocopy machine operator jobs)). 7 furnishes substantial evidence that Plaintiff could perform other work 8 existing in significant numbers in the region, and therefore Plaintiff 9 is not entitled to disability benefits for the closed period. This testimony See 10 Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); see also 11 Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez 12 v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986); Mickelson-Wurm v. 13 Commissioner Social Sec. Admin., 2008 WL 2795881 *4 (9th Cir. July 21, 14 2008) (unpublished disposition) (noting that the Court has previously 15 held that between 1,000 and 1,500 jobs in the regional economy 16 constitutes a significant number for purposes of the Social Security 17 Act); see generally 42 U.S.C. § 423(d)(2)(A).12 18 19 II. Plaintiff s Various Arguments Are Unavailing. 20 Plaintiff contends that: (1) the ALJ erred in finding that 21 22 Plaintiff had engaged in substantial gainful activity since her 23 alleged disability onset date because Plaintiff was given special 24 accommodations ; (2) the ALJ erred in rejecting Dr. Itamura s opinion 25 concerning Plaintiff s work restrictions, and selectively edited the 26 27 28 12 The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 17 1 evidence in the record to justify the conclusion that Plaintiff is not 2 disabled; (3) the ALJ erred in finding that Plaintiff had the ability 3 to perform her past relevant work as a physical therapy instructor; 4 and (4) the ALJ erred in relying on earlier credibility findings which 5 Plaintiff claims were not supported by substantial evidence. 6 Plaintiff s Motion for Summary Judgment or Remand, pp. 3-10. 7 of these contentions merits relief.13 See None 8 9 Plaintiff argues that the ALJ failed properly to assess the 10 opinion of Dr. Itamura in finding that Plaintiff retained the residual 11 functional capacity to do limited light work. 12 treating physician s opinion is contradicted, the ALJ may reject the 13 opinion by setting forth specific, legitimate reasons for doing so. 14 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); Orn v. Astrue, 495 15 F.3d 625, 631-33 (9th Cir. 2007) (discussing same). The ALJ must do 16 more than offer his conclusions. 17 interpretations and explain why they, rather than the [physician s], 18 are correct. 19 Broad and vague reasons for rejecting the treating physician s 20 opinion do not suffice. 21 (9th Cir. 1989). Where, as here, a He must set forth his own Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). McAllister v. Sullivan, 888 F.2d 599, 602 22 23 Here, the ALJ s March 23, 2006 decision expressly rejected 24 Dr. Itamura s later, more restrictive residual functional capacity 25 assessments (A.R. 332). The ALJ stated legally sufficient reasons for 26 27 28 13 The Court has considered all of Plaintiff s arguments and has found those arguments unpersuasive. The Court discusses Plaintiff s principal arguments herein. 18 1 doing so, explaining: 2 3 The ALJ believes that, at best, claimant had brief 4 exacerbation(s) after [Dr. Itamura s] January 2001 5 report,14 but that she has not swayed from the 6 assessment therein provided insofar as her sustained 7 work capacities starting in March 2002. 8 reported by Dr. Itamura in the subsequent reports [to] 9 January 2001 primarily relate to claimed increased First, the data 10 symptoms. In any event, only in March and August 2001 11 does [Dr. Itamura] provide us with any data [for] the 12 examination conducted. 13 2002 form state that the claimant has right upper 14 extremity instability with intermittent swelling and 15 left ulnar neuropathy with positive Tinel s sign and 16 intermittently decreased range of motion, but these 17 findings are not described in any examination post 18 August 2001. 19 to the April 2002 report, Dr. Kuschner s evaluation of 20 the left elbow showed full active range of motion 21 without complaint of pain, negative Tinel at the level 22 of the cubital tunnel, and no pain with palpatation over 23 the lateral or medial epicondyle []. His responses on the October Secondly, in March 2002, the month prior He did not relate 24 25 26 27 28 14 The record supports the characterization of Plaintiff s troubles as brief exacerbations. In her request for a hearing filed after Dr. Kuschner s consultative examination, Plaintiff reported that she suffered from intermittent exacerbations of symptoms [in her] bilateral upper extremities[,] treated with antiinflammatory medication, physical therapy and self management techniques (A.R. 116). 19 1 any of the left elbow abnormalities that Dr. Itamura 2 reported in the March and August 2001 reports. 3 her present complaint was restricted to right major 4 wrist. In fact, 5 6 (A.R. 332). The ALJ summarized Dr. Kuschner s examination findings, 7 and noted they do not comport with those related by Dr. Itamura in 8 [March] and August 2001 and, as noted, Dr. Itamura s other subsequent 9 reports are either totally lacking in objective data, or, as in 10 October 2002, state them in conclusory terms without reference to any 11 specific examination after March 2002 (Id.). 12 noted that the medical examiner relied heavily on Dr. Kuschner s 13 report and did not agree with Dr. Itamura s assessment (Id.). Finally, the ALJ also 14 15 An ALJ properly may reject treating physicians conclusory 16 assessments when unsupported by adequate clinical findings. 17 e.g., Matney v. Sullivan, 981 F.2d 1016, 1019-20 (9th Cir. 1992); 18 Burkhart v. Bowen, 856 F.2d 1335, 1139-40 (9th Cir. 1988); Young v. 19 Heckler, 803 F.2d 963, 967-68 (9th Cir. 1986); see also Bayliss v. 20 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction between 21 treating physician s assessment and clinical notes justifies rejection 22 of assessment); Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 23 2004) ( an ALJ may discredit treating physicians opinions that are 24 conclusory, brief, and unsupported by the record as a whole . . . or 25 by objective medical findings ); Connett v. Barnhart, 340 F.3d 871, 26 875 (9th Cir. 2003) (treating physician s opinion properly rejected 27 where treating physician s treatment notes provide no basis for the 28 functional restrictions he opined should be imposed on [the 20 See, 1 claimant] ). Similarly, an ALJ properly may reject a treating 2 physician s opinion that is predicated on the properly discounted 3 subjective complaints of the claimant. 4 605 (9th Cir. 1989). 5 in the ALJ s rejection of Dr. Itamura s latest assessments in 6 determining Plaintiff s residual functional capacity. Fair v. Bowen, 885 F.2d 597, Accordingly, the Court finds no material error 7 8 9 Plaintiff also argues that the ALJ failed properly to assess her credibility by failing to make any credibility findings, and, 10 instead, relying on the prior ALJ s credibility assessment. See 11 Plaintiff s Motion for Summary Judgment or Remand, p. 10. Plaintiff 12 did not offer any new testimony concerning her alleged impairments on 13 remand. 14 ALJ previously had rejected (A.R. 15-16, 295-96, 301-06). Rather, Plaintiff relied on prior testimony that the prior 15 16 In the November 9, 2002 administrative hearing, Plaintiff 17 claimed that she suffered from pain and instability and loss of 18 function in both upper extremities (A.R. 302). 19 goes to the gym every day for about an hour for a very limited 20 workout compared to what she used to do (A.R. 303-04 (describing very 21 limited as I can t swim )). 22 classes anymore, does a very limited weight program lifting no more 23 than three pounds, is able to do one hour on the treadmill, and goes She testified that she Plaintiff said she cannot take exercise 24 25 26 27 28 21 1 to the gym to keep the rest of her body in shape (A.R. 303-04).15 2 3 In finding Plaintiff not disabled, the ALJ noted that 4 Plaintiff s allegations were credible only to the extent that the 5 allegations comport with the ALJ s residual functional capacity 6 assessment (A.R. 335). 7 legally sufficient credibility finding.16 Ordinarily, such a notation would not state a However, the prior ALJ 8 9 10 11 12 13 14 15 16 17 18 15 In a pain questionnaire dated May 15, 2002, Plaintiff reported that she could do modified exercise at the gym, modified yoga, limited cooking (with no lifting of heavy pots or chopping of certain foods), limited driving, and modified household chores (A.R. 101-02). Plaintiff said that she could not do manual physical therapy, and must limit her writing and computer use (A.R. 102). She also reported she could not do sailing, golf, tennis, swimming, riding a bicycle, or skiing (Id.). In a daily activities questionnaire of the same date, Plaintiff asserted that she could climb stairs but would avoid lifting whenever possible (A.R. 114). She could carry grocery bags from her car to her apartment three to four times per week (without indicating a weight limit on what she could carry), and used a backpack where possible to carry objects (Id.). Plaintiff reported that she was able to walk and hike (Id.). 16 19 20 21 22 23 24 25 To reject as not credible a claimant s testimony concerning his or her limitations, at a minimum the ALJ must make specific, cogent findings, supported in the record, to justify the rejection. See Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (2006); Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) and Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)); Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must specifically identify the testimony [the ALJ] finds not to be credible and must explain what evidence undermines the testimony ); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) ( The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion. ). 26 27 28 In the absence of evidence of malingering, most recent Ninth Circuit cases have applied the arguably more rigorous clear and convincing standard. See, e.g., Carmickle v. Commissioner, 533 (continued...) 22 1 expressly had found Plaintiff s testimony not fully credible based in 2 part on Plaintiff s description of her activities of daily living 3 (A.R. 15-16). 4 and the present ALJ properly could rely on that determination. The prior ALJ s determination was legally sufficient 5 6 The ALJ s credibility findings must be sufficiently specific 7 to allow a reviewing court to conclude the ALJ rejected the claimant s 8 testimony on permissible grounds and did not arbitrarily discredit the 9 claimant s testimony. Moisa, 367 F.3d at 885. To find the claimant 10 not credible, an ALJ may rely on (1) reasons unrelated to the content 11 of the subjective testimony (e.g., reputation for dishonesty); 12 (2) internal contradictions in the testimony; or (3) conflicts between 13 the claimant s testimony and the claimant s conduct (e.g., engaging in 14 daily activities inconsistent with the alleged symptoms, performing 15 work inconsistent with the alleged symptoms, or failing, without 16 adequate explanation, to take medication, to seek treatment or to 17 follow a prescribed course of treatment). 18 F.3d at 1040; Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch v. 19 Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005); Thomas v. Barnhart, 20 278 F.3d 947, 958-59 (9th Cir. 2002); SSR 96-7p. 21 /// 22 /// Lingenfelter v. Astrue, 504 23 16 24 25 26 27 28 (...continued) F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007); Robbins, 466 F.3d at 883; Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003); Ballard v. Apfel, 2000 WL 1899797 *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ s findings incorporating the prior ALJ s decision would have been sufficient under either standard, so the distinction between the two standards (if any) is academic. 23 1 Here, the prior ALJ s credibility findings were sufficiently 2 specific. Among other reasons, the ALJ discredited Plaintiff s 3 allegations of severe and debilitating pain, instability and emotional 4 symptoms as inconsistent with Plaintiff s daily activities (A.R. 15). 5 As summarized above, Plaintiff did not provide extensive testimony 6 concerning her purported limits; Plaintiff did, however, testify 7 concerning her extensive daily activities. 8 between claimed incapacity and admitted daily activities amply support 9 the prior ALJ s rejection of Plaintiff s credibility. Such inconsistencies See Thomas v. 10 Barnhart, 278 F.3d at 958-59 (inconsistency between the claimant s 11 testimony and the claimant s conduct supported the rejection of the 12 claimant s credibility); see also Burch v. Barnhart, 400 F.3d at 680- 13 812 (daily activities can constitute clear and convincing reasons 14 for discounting a claimant s testimony); Rollins v. Massanari, 261 15 F.3d 853, 857 (9th Cir. 2001) (claimant s testimony regarding daily 16 domestic activities undermined the credibility of her pain-related 17 testimony); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 18 (inconsistencies between claimant s testimony and actions cited as a 19 clear and convincing reason for rejecting the claimant s testimony). 20 21 Moreover, even if the ALJ had erred in failing to provide 22 adequate reasons for rejecting Plaintiff s credibility, the Court 23 finds that any such error is harmless. 24 extensive daily activities but did not testify to any greater 25 limitations than the ALJ found to exist. 26 Commissioner, 533 F.3d at 1162-63 (where error in ALJ s credibility 27 determination does not negate in any way the validity of the ALJ s 28 ultimate nondisability determination, i.e., where there remains 24 Plaintiff testified to her See Carmickle v. 1 substantial evidence supporting the ALJ s decision, such error is 2 harmless). 3 4 CONCLUSION 5 6 For all of the reasons discussed herein, Plaintiff s motion for 7 summary judgment is denied and Defendant s motion for summary judgment 8 is granted. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: October 8, 2008. 13 14 15 16 _____________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 25

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