James E. Barry v. Michael J. Astrue, No. 2:2008cv03880 - Document 22 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. Because the ALJs failure to address Dr. Gwartzs finding that Plaintiff should not be exposed to pulmonary irritants was harmless, his decision that Plaintiff was not disabled is affirmed. (rp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JAMES E. BARRY, Plaintiff, 11 12 13 ) ) ) ) ) ) ) ) ) ) ) ) v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. Case No. CV 08-3880 PJW MEMORANDUM OPINION AND ORDER 16 17 Before the Court is Plaintiff s appeal of a decision by Defendant 18 Social Security Administration ( the Agency ), denying his application 19 for Supplemental Security Income ( SSI ). 20 decision that Plaintiff was not disabled is supported by substantial 21 evidence, it is affirmed. 22 Because the Agency s In November 2001, Plaintiff applied for SSI. (Administrative 23 Record ( AR ) 50-53.) The Agency denied the application initially and 24 on reconsideration. 25 27, 2004, at which Plaintiff appeared with counsel and testified, an 26 Administrative Law Judge ( ALJ ) issued a decision on November 17, 27 2004, denying the application. 28 sought review in this court, which reversed the Agency s decision and (AR 37-44.) After holding a hearing on October (AR 16-23, 389-404.) Plaintiff 1 remanded the case for further proceedings. 2 different ALJ held a new hearing. 3 appeared with counsel and testified. 4 subsequently issued a decision denying the application. 5 Plaintiff appealed to the Appeals Council, which denied Plaintiff s 6 request for review. 7 action. 8 9 (AR 443-58.) (AR 744-75.) Plaintiff again (AR 744-63.) (AR 405-07, 413-16.) On remand, a The ALJ (AR 417-27.) He then commenced this Plaintiff claims that the ALJ failed to properly consider the opinion of examining physician Barry Gwartz. He points out that, even 10 though the ALJ adopted Dr. Gwartz s residual functional capacity 11 findings, he inexplicably failed to adopt Dr. Gwartz s finding that 12 Plaintiff should never be exposed to dust, odors, fumes, or other 13 pulmonary irritants. 14 the ALJ had adopted this limitation, he would have been required to 15 find Plaintiff disabled based on the testimony of the vocational 16 expert, who opined that such a limitation would preclude Plaintiff 17 from performing unskilled work. 18 The Agency disagrees. (Joint Stip. at 5-7.) In Plaintiff s view, if (Joint Stip. at 7-9.) It argues that Dr. Gwartz s limitation on 19 exposure to fumes and other irritants in a check-the-box form was a 20 mistake. 21 Gwartz s narrative report--which does not mention any such limitation 22 --and argues that it is reasonable to infer that the ALJ elected to 23 adopt Dr. Gwartz s narrative report rather than the finding in the 24 check-the-box form. 25 that because the record does not support a finding that Plaintiff 26 suffered from any respiratory restrictions, the ALJ s error in not 27 pointing out the discrepancy in the check-the-box form was harmless. 28 (Joint Stip. at 10.) It points out that this finding is contradicted by Dr. (Joint Stip. at 9-10.) The Agency argues further For the following reasons, the Court agrees. 2 1 Dr. Gwartz conducted an internal medicine evaluation of Plaintiff 2 on July 11, 2007. 3 medical records and x-ray findings, none of which identified any 4 respiratory issues. 5 no tenderness in Plaintiff s chest, and nothing remarkable in his 6 lungs. 7 chief complaint was back pain and weakness in the right leg. 8 577.) 9 of cigarettes daily but previously smoked upwards to two packs daily. (AR 580.) (AR 577-84.) In doing so, he reviewed Plaintiff s (AR 578-79.) He also examined Plaintiff, finding In his narrative report, he noted that Plaintiff s (AR He reported that Plaintiff continues to smoke at least a pack 10 (AR 579.) 11 the lumbar spine, a history of complex partial seizures, a history of 12 alcohol abuse/addiction, and a personality disorder, not otherwise 13 specified. 14 postural, manipulative, or push and pull limitations, but probably 15 should be precluded from working at heights or near hazardous 16 machinery because of his personality style. 17 He concluded that Plaintiff suffered from spondylosis of (AR 583.) He opined that Plaintiff would have no (AR 583.) Together with his summary narrative report, Dr. Gwartz submitted 18 a check-the-box form entitled, Medical Source Statement of Ability to 19 Do Work-Related Activities (Physical). 20 Dr. Gwartz checked a box indicating that Plaintiff could never 21 tolerate exposure to dust, odors, fumes, and pulmonary irritants. 22 589.) 23 immediately below the box, which asked him to explain the medical 24 findings on which that limitation was based. (AR 585-91.) In that form, (AR He did not, however, complete the portion of the form (AR 589.) 25 At the administrative hearing in November 2007, Plaintiff 26 testified that he had not worked since he filed his SSI application 27 because of back injury and mental illnesses. 28 Plaintiff talked about his mental condition and his problems with 3 (AR 748.) Although 1 walking, standing, and sitting, he did not complain about any 2 respiratory or pulmonary condition or limitations, even after his 3 attorney asked him whether he had any other problems physically 4 besides your back? 5 Does anything else bother you? (AR 747-55, 756.) When the vocational expert testified, Plaintiff s counsel asked 6 him to consider a hypothetical individual who, in addition to various 7 physical limitations, could not tolerate exposure to dust, odors, 8 fumes, and pulmonary irritants. 9 replied that such an individual would not be able to perform any 10 unskilled work. (AR 765, 766.) The vocational expert (AR 766.) 11 In his decision, the ALJ adopted Dr. Gwartz s residual functional 12 capacity assessment in finding that Plaintiff would be able to perform 13 medium unskilled work, but had to avoid exposure to heights and moving 14 machinery. 15 testimony, the ALJ concluded that Plaintiff could perform unskilled 16 work and, therefore, was not disabled. 17 (AR 422, 424.) Based on the vocational expert s (AR 426.) The Court finds that the ALJ erred in not addressing the 18 contradiction between Dr. Gwartz s written report and the check-the- 19 box form that he filled out at the same time, particularly in view of 20 counsel s reliance at the administrative hearing on the environmental 21 irritants limitation indicated in that form. 22 ambiguity regarding the reports, the ALJ should have developed the 23 record further. 24 (9th Cir. 2001) ( Ambiguous evidence . . . triggers the ALJ s duty to 25 conduct an appropriate inquiry. ) (quotation omitted); see also 20 26 C.F.R. ยง 416.912(e). 27 28 Given the evident See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1150 Nevertheless, the Court concludes that the error was harmless because it was inconsequential to the ultimate nondisability 4 1 determination. 2 1055 (9th Cir. 2006) (defining harmless error in social security 3 context). 4 the ALJ s failure to address Dr. Gwartz s finding that Plaintiff 5 should not be exposed to fumes and other irritants does not undermine 6 the ALJ s decision that Plaintiff is not disabled because that 7 limitation was not supported by the record in this case. 8 9 See Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, For the reasons explained below, the Court concludes that First, Plaintiff never alleged at any stage of the process that he suffered from a respiratory or pulmonary impairment. Plaintiff 10 applied for SSI based on a seizure disorder and back injury. 11 75.) 12 2002, noted that he complained of epilepsy and back problems. 13 198.) 14 testified about his back, seizures, and depression, but did not 15 mention any respiratory problems. 16 of any respiratory or breathing problems at the second administrative 17 hearing. 18 argue in the Joint Stipulation that he filed in this court that he 19 suffers from any respiratory ailments. 20 Dr. Singh checked the box on the form that he should not be exposed to 21 airborne irritants the ALJ should have adopted that finding and 22 concluded that he was disabled. 23 (AR 50, Examiner Jagvinder Singh, who examined Plaintiff on January 30, (AR At the first administrative hearing in October 2004, Plaintiff (AR 393-403.) Nor did he complain Most tellingly though is the fact that Plaintiff does not He merely argues that since Second, no evidence in the record supports a finding that 24 Plaintiff has a respiratory problem that requires that he not be 25 exposed to fumes or other irritants. 26 showed Plaintiff s respiratory system to be performing within normal 27 limits. 28 Several physicians specifically reported finding no lung disease. Numerous examination records (AR 134, 139, 142, 146, 149, 151, 154, 181, 183, 190.) 5 (AR 1 162, 166.) 2 and lungs were [s]ymmetric with normal excursions. 3 ascultation throughout. 4 should avoid working in extreme temperatures or near fire, water, and 5 heavy machinery, he did not impose any functional restrictions with 6 respect to exposure to irritants. 7 Examiner Singh found on examination that Plaintiff s chest (AR 199.) Clear to Though he found that Plaintiff (AR 201-02.) Similarly, Dr. Gwartz made no findings of any respiratory or 8 pulmonary impairment in his narrative report. 9 he specifically noted that Plaintiff continued to smoke at least a 10 pack of cigarettes daily, (AR 579), a finding at odds with a total 11 restriction on exposure to fumes or odors in the workplace. 12 (AR 577-84.) Moreover, Finally, Plaintiff does not argue that there is any support in 13 the record for environmental restrictions. 14 evidence that did not make it into the record which would support such 15 a restriction. 16 Nor does he submit any Because the ALJ s failure to address Dr. Gwartz s finding that 17 Plaintiff should not be exposed to pulmonary irritants was harmless, 18 his decision that Plaintiff was not disabled is affirmed. 19 IT IS SO ORDERED. 20 DATED: October 19, 2009. 21 22 23 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 S:\PJW\Cases-Soc Sec\BARRY, J 3880\Memo_Opinion.wpd 6
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