Pamela Todd v. Michael J Astrue, No. 5:2008cv00147 - Document 16 (C.D. Cal. 2008)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle: IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. (See document for further details.) (pcl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 PAMELA TODD, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. EDCV 08-147 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned magistrate judge. 21 review of the denial of disability benefits. 22 judgment should be granted in favor of defendant, affirming the 23 Commissioner s decision. 24 25 I. Plaintiff seeks The court finds that BACKGROUND Plaintiff Pamela Todd was born on February 23, 1954, and was 26 fifty-one years old at the time of her administrative hearing. 27 [Administrative Record, AR, 56, 194.] 28 education and past relevant work experience as a pre-school teacher. 1 She has some college 1 [AR 20, 122.] Plaintiff alleges disability on the basis of carpal 2 tunnel syndrome in both hands and back problems. [AR 74.] 3 4 II. PRIOR PROCEEDINGS Plaintiff applied for disability insurance benefits ( DIB ) and 5 supplemental security income ( SSI ) on May 12, 2004, alleging 6 disability since December 1, 2003. 7 amended her DIB application to allege an onset date of March 19, 2004. 8 [AR 59.] 9 before Administrative Law Judge ( ALJ ) F. Keith Varni. [AR 56-58, 179-80.] Plaintiff An administrative hearing was held on November 7, 2005, [AR 194.] 10 Plaintiff appeared with counsel, and testimony was taken from 11 plaintiff, third party witness Tammi Kendal, and vocational expert 12 ( VE ) Joseph Mooney. 13 dated December 7, 2005. [Decision, AR 21.] 14 review on April 12, 2006. [AR 6.] 15 [Id.] The ALJ denied benefits in a decision The Appeals Council denied Plaintiff filed a complaint in the district court on May 19, 2006 16 (Case No. EDCV 06-461 CW). 17 decision and order remanding the matter for further administrative 18 proceedings. 19 before ALJ Varni. [AR 294.] 20 testimony was taken from plaintiff and VE Mooney. [AR 295.] 21 denied benefits in a decision dated November 28, 2007. [AR 217.] 22 On January 24, 2007, the court issued a An administrative hearing was held on October 30, 2007, Plaintiff appeared with counsel, and The ALJ The instant complaint was lodged on February 4, 2008, and filed 23 on February 13, 2008. On August 14, 2008, defendant filed an answer 24 and plaintiff s Administrative Record ( AR ). 25 the parties filed their Joint Stipulation ( JS ) identifying matters 26 not in dispute, issues in dispute, the positions of the parties, and 27 the relief sought by each party. 28 submission without oral argument. On September 11, 2008, This matter has been taken under 2 III. 1 2 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner s decision to deny benefits. The Commissioner s (or 4 ALJ s) findings and decision should be upheld if they are free of 5 legal error and supported by substantial evidence. 6 court determines that a finding is based on legal error or is not 7 supported by substantial evidence in the record, the court may reject 8 the finding and set aside the decision to deny benefits. 9 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. However, if the See Aukland 10 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 11 F.3d 1157, 1162 (9th Cir. 12 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 13 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 14 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 15 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a Reddick, 157 F.3d at 720. It is relevant evidence 16 preponderance. 17 which a reasonable person might accept as adequate to support a 18 conclusion. 19 a finding, a court must review the administrative record as a whole, 20 weighing both the evidence that supports and the evidence that 21 detracts from the Commissioner s conclusion. 22 can reasonably support either affirming or reversing, the reviewing 23 court may not substitute its judgment for that of the Commissioner. 24 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports IV. 25 Id. If the evidence DISCUSSION 26 A. 27 To be eligible for disability benefits a claimant must 28 THE FIVE-STEP EVALUATION demonstrate a medically determinable impairment which prevents the 3 1 claimant from engaging in substantial gainful activity and which is 2 expected to result in death or to last for a continuous period of at 3 least twelve months. 4 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 5 Disability claims are evaluated using a five-step test: 6 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 7 8 9 10 11 12 13 14 15 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 16 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 17 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 18 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 19 not disabled at any step, there is no need to complete further 20 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 21 Claimants have the burden of proof at steps one through four, 22 subject to the presumption that Social Security hearings are non23 adversarial, and to the Commissioner s affirmative duty to assist 24 claimants in fully developing the record even if they are represented 25 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 26 1288. If this burden is met, a prima facie case of disability is 27 made, and the burden shifts to the Commissioner (at step five) to 28 4 1 prove that, considering residual functional capacity ( RFC )1, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 5 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 6 In the latest administrative decision, the ALJ found that 7 plaintiff had not engaged in substantial gainful activity since her 8 alleged disability onset date (step one); that plaintiff had severe 9 impairments, namely bilateral carpal tunnel syndrome, possible C-8 10 radiculopathy, and dysthymic disorder (step two); and that plaintiff 11 did not have an impairment or combination of impairments that met or 12 equaled a listing (step three). [AR 213, 215.] 13 to have an RFC for the full range of medium work, except for, in 14 pertinent part, reaching with the hands more than frequently; and 15 handling, fingering, feeling, pushing and pulling with the hands more 16 than occasionally. [AR 215.] 17 person with plaintiff s RFC could perform plaintiff s past relevant 18 work as a preschool teacher (step four). [AR 216, 300.] 19 plaintiff was found not disabled as defined by the Social Security 20 Act. [AR 217.] Plaintiff was found The vocational expert testified that a Accordingly, 21 22 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 C. 2 The parties Joint Stipulation sets out the following disputed 3 issues: 4 1. ISSUES IN DISPUTE 5 6 Whether the ALJ properly considered the opinion of the examining physician; 2. Whether the ALJ properly considered whether plaintiff could 7 perform her past relevant work in light of the examining 8 physician s opinion; 9 3. Whether the ALJ properly considered a questionnaire 10 regarding plaintiff s ability to do work-related activities 11 (physical); 12 4. 13 14 Whether the ALJ properly developed the record in light of the questionnaire; and 5. 15 Whether the hypothetical posed to the vocational expert reflected the limitations set forth in the questionnaire. 16 [JS 2-3.] 17 D. 18 In August 2007, plaintiff underwent a comprehensive orthopedic ISSUES ONE AND TWO: EXAMINING PHYSICIAN 19 evaluation conducted by Dr. William C. Boeck. [AR 255-59.] Plaintiff 20 complained of problems with her upper extremities and past carpal 21 tunnel surgery on the right hand. [AR 255.] 22 examination, Dr. Boeck found that the range of motion in plaintiff s 23 upper extremities, including her shoulders, elbows, forearms, wrists 24 and hands, was grossly normal. [AR 257.] 25 that plaintiff had only fair strength in both hands and 26 hypersensitivity on the ulnar aspect of the right wrist, the 27 hypothenar eminence, and the ring and little fingers. [Id.] 28 diagnosed bilateral carpal tunnel syndrome, status post surgery on the 6 Upon physical Additional findings included Dr. Boeck 1 right wrist, the dominant upper extremity. [AR 250.] Dr. Boeck also 2 completed a questionnaire entitled Medical Source Statement of Ability 3 to do Work-Related Activities (Physical). [AR 260-65.] 4 plaintiff s exertional limitations, Dr. Boeck found, among other 5 things, that plaintiff could lift up to fifty pounds occasionally and 6 twenty pounds frequently, sit for eight hours in a workday, and stand 7 or walk for four hours in a workday. [AR 260-61.] 8 plaintiff s ability to use her hands, Dr. Boeck responded that 9 plaintiff could perform reaching frequently, i.e., one-third to two- With regard to With respect to 10 thirds of the time, but that she could handle, finger, feel and 11 push/pull only occasionally, i.e., up to one-third of the time. [AR 12 262.] 13 In the administrative decision, the ALJ detailed Dr. Boeck s 14 examination and concluded that it indicated limits consistent with a 15 narrow range of medium work, except for the ability to reach with her 16 hands more than frequently and handle, finger, feel, push and pull 17 more than occasionally, among other things. [AR 214.] 18 the ALJ found that plaintiff could perform her past relevant work as a 19 preschool teacher. [AR 216.] 20 to take into account fully Dr. Boeck s opinion, specifically, that 21 plaintiff had limitations in the use of her hands as described above. 22 [JS 3.] Plaintiff further contends that if such limitations were 23 credited, it would preclude plaintiff from doing her past relevant 24 work because the job of teacher requires frequent handling according 25 to the Dictionary of Occupational Titles ( DOT ). [JS 6.] 26 Accordingly, Plaintiff contends that the ALJ failed First, it is evident that the ALJ took into account and credited 27 Dr. Boeck s opinion regarding plaintiff s limitations in the use of 28 her hands because the ALJ s functional assessment in that area is 7 1 2 identical to that of Dr. Boeck. [Compare AR 215 and AR 262.] Second, the ALJ s functional finding was not inconsistent with 3 plaintiff s ability to perform her past relevant work. The Ninth 4 Circuit has held that, pursuant to a finding of non-disability at step 5 four, a claimant must be able to perform: 1. The actual functional 6 demands and job duties of a particular past relevant job; or 2. The 7 functional demands and job duties of the occupation as generally 8 required by employers throughout the national economy. 9 Massanari, 249 F.3d 840, 845 (9th Cir. 2001)(citing SSR 82-61, 1982 WL Pinto v. 10 31387). The ALJ need only make findings as to either general or 11 actual performance of past relevant work, but not both. 12 never required explicit findings at step four regarding a claimant s 13 past relevant work both as generally performed and as actually 14 performed. )(emphasis in original). 15 to be limited to handling occasionally, points out that the job of 16 preschool teacher, as described in the DOT, requires handling 17 frequently, this inconsistency does not mean that the ALJ s step 18 four finding was erroneous. 19 teacher job in the DOT may suggest that plaintiff would have 20 difficulty performing that job as generally performed in the national 21 economy, it would not prevent a finding that plaintiff could return to 22 her job as she actually performed it. 23 two sources of information that may be used to define a claimant s 24 past relevant work as actually performed are a properly completed 25 vocational report and the claimant s own testimony. 26 Disability Report completed in May 2004, plaintiff reported that her 27 job as preschool teacher required zero hours of handling, grabbing or 28 grasping big objects each day, as well as two hours of handling small Id. ( We have Although plaintiff, who was found Although the description of the preschool 8 As to the latter determination, Id. Here, in a 1 objects each day; both of these demands fall below plaintiff s 2 limitation to handling on an occasional basis, i.e., up to one-third 3 of the time. [AR 76, 215, 262.] 4 for the ALJ to conclude that the limitations in plaintiff s use of her 5 hands would not preclude her from performing the actual functional 6 demands and job duties of her past relevant work. Accordingly, it was not unreasonable 7 E. 8 In April 2007, an unidentified physician submitted a Medical 9 ISSUES THREE, FOUR and FIVE: FUNCTIONAL QUESTIONNAIRE Opinion Re: Ability to do Work-Related Activities (Physical) .2 [AR 10 287-89.] Among other things, the physician wrote that plaintiff 11 should be limited to carrying less than ten pounds on an occasional or 12 frequent basis, and that the following physical functions were 13 affected: reaching, handling, fingering, feeling, and pushing/pulling. 14 [AR 287, 288.] 15 support the limitations, the physician wrote, C-8 radiculopathy with 16 carpal tunnel and EMG [Electromyogram]/NCS [Nerve Conduction 17 Study]. [AR 288.] In response to the question of what medical findings 18 In the administrative decision, the ALJ found this assessment 19 unpersuasive because [n]o clinical findings of significance are 20 cited and the apparent opinion of basic hand uselessness is rebutted 21 by the findings of the two consultative orthopedic examiners as well 22 as those of the State agency medical consultants. 3 [AR 216.] 23 24 2 Because the physician is unidentified, the nature of his or her relationship with plaintiff is not clear. 25 3 26 27 28 In the latest administrative decision, as well as a prior decision incorporated by reference, the ALJ discussed the medical source opinions that supported a finding of non-disability. One of the consultative orthopedic examiners, Dr. Boeck, opined that plaintiff had certain limitations in the use of her hands, which the ALJ found would not preclude plaintiff from performing her past 9 1 Plaintiff argues that the ALJ improperly rejected this opinion 2 without providing legally sufficient reasons and that the ALJ should 3 have developed the record further regarding the basis for the opinion. 4 [JS 8, 10.] 5 opinion should have been credited and included in the hypothetical 6 questions posed to the VE at the administrative hearing. [JS 14.] 7 Plaintiff also argues that the limitations set out in the First, the ALJ provided specific and legitimate reasons supported 8 by substantial evidence in the record to reject this medical opinion. 9 See Lester, 81 F.3d at 830. The ALJ made a detailed summary of and 10 explanation for why the opinions of two examining physicians and two 11 state agency physicians should be given greater weight than the 12 unattributed opinion above. 13 (9th Cir. 2002). 14 ALJ should have further developed the record to determine the basis of 15 the opinion, the record was not ambiguous or otherwise inadequate so 16 as to trigger such a duty. 17 1068 (9th Cir. 2006). 18 legitimate reasons to find the unidentified opinion not persuasive and 19 cited substantial evidence to support the ultimate disability 20 determination; under these circumstances, further inquiry was not 21 required. 22 2001)( An ALJ s duty to develop the record further is triggered only 23 when there is ambiguous evidence or when the record is inadequate to 24 allow for proper evaluation of the evidence. )(citing Tonapetyan v. See Thomas v. Barnhart, 278 F.3d 947, 957 Second, to the extent that plaintiff argues that the See Widmark v. Barnhart, 454 F.3d 1063, In this case, the ALJ articulated specific and See Mayes v. Massanari, 276 F.3d 453, 459-460 (9th Cir. 25 26 27 28 relevant work, as discussed above. The second consultative examiner, Dr. Meltzer, found that from a purely orthopedic standpoint, plaintiff had no functional restrictions. [AR 126.] Two state agency review physicians, Dr. Haaland and Dr. Lizarraras, found that plaintiff s orthopedic problems were non-severe. [AR 130, 157.] 10 1 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)); Lewis v. Apfel, 236 F.3d 2 503, 515 (9th Cir. 2001)(holding that the ALJ did not err in failing 3 to seek additional evidence where the ALJ did not find the record 4 insufficient to properly evaluate the evidence, the evidence already 5 present did not consistently favor the claimant, and there was 6 substantial evidence inconsistent with disability). 7 substantial evidence supported the ALJ s finding that the opinion at 8 issue was not persuasive, Issue Three which asserts that the 9 limitations set out in the opinion should have been included in the 10 Moreover, because hypothetical questions to the VE is without merit. 11 V. ORDERS 12 Accordingly, IT IS ORDERED that: 13 1. The decision of the Commissioner is AFFIRMED. 14 2. This action is DISMISSED WITH PREJUDICE. 15 3. The Clerk of the Court shall serve this Decision and Order 16 and the Judgment herein on all parties or counsel. 17 18 19 20 DATED: October 21, 2008 ___________/S/___________________ CARLA M. WOEHRLE United States Magistrate Judge 21 22 23 24 25 26 27 28 11

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