Phillip J. Johnson v. Michael J. Astrue, No. 2:2010cv04815 - Document 23 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 PHILLIP JOHNSON, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-04815-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 considered 2 examining opinion of Homayoun Saeid, M.D.; and 3 2. the medical evidence as contained in the Whether the ALJ properly considered Plaintiff s testimony. 4 5 This Memorandum Opinion will constitute the Court s findings of 6 fact and conclusions of law. After reviewing the matter, the Court 7 concludes that the decision of the Commissioner must be affirmed. 8 9 I 10 THE ALJ DID NOT ERR IN EVALUATING THE OPINION 11 OF EXAMINING PHYSICIAN DR. SAEID 12 On March 7, 2008, at the request of the Department of Social 13 Services, Plaintiff received a complete internal medicine evaluation 14 from Dr. Saeid. (AR 322-336.) 15 physical examination and taking a history, Dr. Saeid completed a 16 check-off 17 entitled Medical Sourced Statement of Ability to Do Work Related 18 Activities (Physical). 19 answer to the question, Does the individual require the use of a cane 20 to ambulate? (AR 331.) 21 residual 22 Plaintiff to ambulation with the use of an assistive device, such as 23 a cane. (AR 23.) form provided functional by In addition to performing a complete the Social Security Administration In that form, Dr. Saeid checked off yes in Nevertheless, in assessing Plaintiff s capacity ( RFC ), the ALJ did not restrict Plaintiff claims this is error. (JS at 6.) 24 The Court s review of all of the medical evidence in the AR 25 reveals that no physician ever opined that Plaintiff required the use 26 of an assistive device to ambulate. 27 check-off form completed by Dr. Saeid. 28 notes that in Dr. Saeid s report (AR 322-326), there is no mention of 2 The only exception is in the Looking further, the Court 1 the need for such a device. Indeed, the physical findings do not 2 support such a conclusion. 3 normal gait, good motor tone with good active motion, strength is 5/5 4 in all extremities; normal reflex reaction in the biceps and knee 5 jerks, and that Plaintiff is able to stand on his heels and toes and 6 perform gait. Indeed, Dr. Saeid assessed that Plaintiff is capable of 7 lifting and carrying 50 pounds occasionally and 25 pounds frequently, 8 and can stand and walk six hours in an eight-hour day, and sit for six 9 hours in an eight-hour day. (AR 326.) Dr. Saeid found that Plaintiff had a 10 The question arises, then, whether Dr. Saeid s checking of yes 11 in answer to the question as to whether Plaintiff requires a cane to 12 ambulate, is a typographical or inadvertent error. 13 overwhelmingly 14 First, as noted, Dr. Saeid s written report nowhere mentions that 15 Plaintiff requires an assistive device to ambulate, and in fact, Dr. 16 Saeid 17 ability to ambulate. Further, Plaintiff never complained to Dr. Saeid 18 that he had any problem walking, and there is no indication that he 19 utilized a cane or other device during the examination. 20 check-off form itself requires further answers if the first answer is 21 yes. 22 far can the individual ambulate without the use of cane, is the use of 23 a cane medically necessary, and, without a cane, can the individual 24 use his or her free hand to carry small objects. 25 form provides a space for the examiner to notate the particular 26 medical 27 assessment, and why the findings support the assessment. 28 was left blank. (See AR at 331.) reported supports an completely affirmative normal answer findings to The evidence that regarding question. Plaintiff s Further, the Dr. Saeid provided no further answers to such questions as, how of clinical findings and 3 symptoms In addition, the which support the Again, this 1 The Court also notes that Dr. Saeid made another error in the 2 check-off form, which would support an inference that he paid little 3 attention to it, and that the reference to the need for use of a cane 4 is an inadvertent error. 5 to lift and carry, he checked off occasionally next to the section 6 which contains limitations to 21 to 50 pounds. 7 with his diagnostic report; however, the next section indicates that 8 Plaintiff is only capable of frequently carrying 11 to 20 pounds. (AR 9 330.) That is, when assessing Plaintiff s ability This is consistent This is inconsistent with Dr. Saeid s diagnostic report, in 10 which he indicates that Plaintiff can lift and carry 25 pounds 11 frequently. 12 In addition to the inconsistencies between the check-off form and 13 Dr. Saeid s own examination, no such medical assessment was made in 14 another examination by a different physician, Dr. Klein, who performed 15 a comprehensive internal medicine evaluation on April 26, 2006, at the 16 request of the Department of Social Services. (AR 154-159.) 17 report, Dr. Klein made detailed observations about Plaintiff s gait, 18 which are worth repeating: In this 19 [Plaintiff] is able to change position and get on and off 20 examining table without difficulty. 21 not 22 unaffected. 23 assistive aid is required for ambulation across the room. 24 (Emphasis added.) 25 unsteady or unpredictable. Gait is normal; it is Heel to toe walking Squatting and rising within normal limits. No (AR at 158.) 26 27 28 Dr. Klein s conclusions are consistent with his examination, in which he found normal range of 4 motion in Plaintiff s lower 1 2 extremities. (AR 157-158.) Despite Plaintiff s complaints about the ALJ s failure to 3 incorporate Dr. Saeid s purported finding that he required use of a 4 cane, the fact is that the ALJ adopted the more restrictive functional 5 conclusions reported by Dr. Klein two years earlier in assessing 6 Plaintiff s RFC. 7 Finally, at the hearing before the ALJ in this matter (AR 466- 8 486), Plaintiff was directly asked to describe his medical problems 9 insofar as they prevented him from working. He indicated that he 10 could go shopping from time to time, that he could walk up and down 11 the aisles and pick out the items he needed, and put them in a basket, 12 and then take them to the counter and pay for them. (AR 478.) 13 in this testimony, or anywhere else in the record, is there any 14 indication whatsoever that Plaintiff had problems ambulating, much 15 less that he required the use of an assistive device. 16 can find no error whatsoever with regard to the ALJ s assessment of 17 Dr. Saeid s opinion. Indeed, Plaintiff s first issue borders on being 18 frivolous. Nowhere Thus, the Court 19 20 II 21 THE ALJ S CREDIBILITY ASSESSMENT IS SUPPORTED 22 BY SPECIFIC AND LEGITIMATE REASONS IN THE RECORD 23 In his second issue, Plaintiff asserts that the ALJ failed to 24 articulate legally sufficient reasons to reject his testimony as to 25 subjective 26 analysis (see Social Security Ruling [ SSR ] 96-7p), by which it must 27 be determined whether there is an underlying medically determinable 28 physical or mental impairment that could reasonably be expected to pain. Plaintiff cites 5 the well recognized two-step 1 produce the complained of pain or other symptoms, and if so, it is the 2 Commissioner s 3 intensity, persistence and limiting effects of these symptoms to 4 determine the extent to which they limit the individual s ability to 5 do work activities. (See Bunnell v. Sullivan, 947 F.2d 341, 345 (9th 6 Cir. 1991)(en banc).) 7 conduct this analysis properly, and in fact, claims that the ALJ s 8 decision is void of any sufficient rationale at all ... (JS at 16.) 9 Plaintiff s claims are not borne out by the record. 10 The ALJ responsibility is to investigate and evaluate the Plaintiff asserts that the ALJ failed to charged with utilizing ordinary techniques of 11 credibility evaluation. The regulations spell out many of the factors 12 which should be evaluated in this process. (See 20 C.F.R. §§404.1529, 13 416.929; SSR 96-7p.) 14 Plaintiff s complaints were of poor endurance, a disabling 15 fatigue, cramping in his whole body, back pain, and arthralgias (joint 16 pains). (AR 23, 80, 99, 107.) 17 As to Plaintiff s complaints of poor endurance, the ALJ quite 18 properly remarked that Plaintiff s chronic alcoholism and daily 19 marijuana use could reasonably be expected to reduce one s stamina. 20 (AR 21 Plaintiff s statements at various times about his use of alcohol and 22 marijuana are inconsistent. 23 April 26, 2006 that he continues to drink approximately two beers per 24 day. (AR 154.) 25 heavily for 20 years, and although he stopped using cocaine, he smoked 26 marijuana daily. (AR 175.) 27 2005, Plaintiff admitted that he is still drinking. (AR 178.) 28 treating doctor observed in 2004 that Plaintiff most likely had 24.) This observation is well-supported by the record. For example, he reported to Dr. Klein on At about the same time, he admitted that he drank In a previous progress note from the year 6 His 1 continued drug and alcohol abuse. (AR 188.) 2 Plaintiff 3 contributes to a condition called thrombocytopenia, which could be a 4 factor in causing his fatigue. (AR 24.) 5 (and Plaintiff has not disputed the accuracy of these observations), 6 that 7 consistent. (Id.) had been Plaintiff advised maintained to stop The ALJ also noted that consuming various alcohol, as it Further, the ALJ observed dates of sobriety, none 8 As a second reason, although Plaintiff complained of back pain, 9 the ALJ observed that Plaintiff has never been diagnosed with or 10 treated for any such condition. (AR 24.) 11 dispute the accuracy of this observation, or the fact that it is 12 relevant in the credibility analysis. 13 observed in discussing Plaintiff s first claim, both Doctors Saeid and 14 Klein found normal results with regard to Plaintiff s spinal range of 15 motion, negative straight leg raising tests, full power in all his 16 extremities, and normal sensation and reflexes. 17 Again, Plaintiff does not Indeed, as the Court has The same observation is true as to Plaintiff s complaint of 18 arthralgias. 19 revealed that he had normal joints and no restrictions on range of 20 motion in his hands, wrists, elbows, shoulders, hips, knees and 21 ankles. 22 erythema, or edema. (AR 24, 156-158, 324-326.) 23 The ALJ noted that Plaintiff s physical examinations There was no evidence that he had any tenderness, swelling, Finally, the ALJ observed that Plaintiff made inconsistent 24 statements about his own level of daily activities. 25 his subjective pain complaints, he admitted he could lift and carry up 26 to 25 or 30 pounds, that he shopped once a week, did household chores, 27 could drive for up to an hour at a time, and that he did other 28 household chores which would conflict with his subjective complaints. 7 In contrast to 1 (AR 24, 97-98.) 2 be a quadriplegic dependant upon others for survival and unable to 3 perform any activities in order to demonstrate credible subjective 4 pain (JS at 13), that is not the nature of the analysis which the ALJ 5 performed in this case, which quite properly restricted itself to 6 recognized credibility factors. 7 8 9 10 11 In sum, While Plaintiff correctly observes that he need not the Court finds no error whatsoever in the credibility analysis. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 12 13 14 ALJ s DATED: June 2, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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