Damond Harris v. Michael J. Astrue, No. 5:2008cv00507 - Document 18 (C.D. Cal. 2009)

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. (See document for further details.) (pcl)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 DAMOND HARRIS, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. EDCV 08-507 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 Damond Harris was born on January 30, 1973, and was 26 thirty-four years old at the time of his administrative hearing. 27 [Administrative Record ( AR ) 37, 138.] 28 education and past relevant work experience as a warehouse laborer, 1 He has a high school 1 industrial painter, painter s helper and construction laborer. [AR 2 20.] 3 foot, back, neck, left hip and knees, and depression, due to a 4 workplace accident. [AR 80.] Plaintiff alleges disability on the basis of a pain in his left 5 6 II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on April 10, 2008, and filed on 7 April 23, 2008. 8 plaintiff s Administrative Record ( AR ). 9 parties filed their Joint Stipulation ( JS ) identifying matters not 10 in dispute, issues in dispute, the positions of the parties, and the 11 relief sought by each party. 12 submission without oral argument. 13 14 On October 30, 2008, defendant filed an answer and III. On January 8, 2009, the This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for disability insurance benefits ( DIB ) and 15 supplemental security income ( SSI ) on October 19, 2005, alleging 16 disability since August 19, 2003. [AR 70, 138.] 17 applications were denied initially and on reconsideration, plaintiff 18 requested an administrative hearing, which was scheduled for February 19 21, 2007, before Administrative Law Judge ( ALJ ) Jay Levine. [AR 59.] 20 Plaintiff did not appear at the hearing, but he later wrote a letter 21 to the Commissioner stating that he had been involved in an automobile 22 accident on February 15, 2007. [AR 115.] 23 dismissed on April 24, 2007, citing plaintiff s failure to provide 24 evidence corroborating the explanation. [AR 70-71.] 25 submitted a police report documenting the accident. [AR 117-24.] 26 July 21, 2007, the Appeals Council ordered remand for an 27 administrative hearing, finding that plaintiff had good reason not to 28 appear at the initial hearing. [AR 126-27.] 2 After the The ALJ ordered the case Plaintiff later On An administrative hearing was held on November 28, 2007, before 1 2 ALJ Levine. [AR 37.] 3 was taken from plaintiff and vocational expert David Rinehart. [AR 4 38.] 5 2008. [AR 14-21.] 6 2008, the ALJ s decision became the Commissioner s final decision. [AR 7 5-7.] The ALJ denied benefits in a decision filed on February 12, 8 9 Plaintiff appeared with counsel, and testimony When the Appeals Council denied review on March 14, IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 10 Commissioner s decision to deny benefits. 11 ALJ s) findings and decision should be upheld if they are free of 12 legal error and supported by substantial evidence. 13 court determines that a finding is based on legal error or is not 14 supported by substantial evidence in the record, the court may reject 15 the finding and set aside the decision to deny benefits. 16 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 17 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 18 F.3d 1157, 1162 (9th Cir. 19 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 20 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 21 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 22 The Commissioner s (or However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 23 preponderance. Reddick, 157 F.3d at 720. 24 which a reasonable person might accept as adequate to support a 25 conclusion. 26 a finding, a court must review the administrative record as a whole, 27 weighing both the evidence that supports and the evidence that 28 detracts from the Commissioner s conclusion. Id. It is relevant evidence To determine whether substantial evidence supports 3 Id. If the evidence 1 can reasonably support either affirming or reversing, the reviewing 2 court may not substitute its judgment for that of the Commissioner. 3 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. 4 V. DISCUSSION 5 A. THE FIVE-STEP EVALUATION 6 To be eligible for disability benefits a claimant must 7 demonstrate a medically determinable impairment which prevents the 8 claimant from engaging in substantial gainful activity and which is 9 expected to result in death or to last for a continuous period of at Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 10 least twelve months. 11 721; 42 U.S.C. § 423(d)(1)(A). 12 Disability claims are evaluated using a five-step test: 13 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. 14 15 16 17 18 19 20 21 22 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 23 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 24 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 25 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 26 not disabled at any step, there is no need to complete further 27 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 28 4 Claimants have the burden of proof at steps one through four, 1 2 subject to the presumption that Social Security hearings are non- 3 adversarial, and to the Commissioner s affirmative duty to assist 4 claimants in fully developing the record even if they are represented 5 by counsel. 6 1288. 7 made, and the burden shifts to the Commissioner (at step five) to 8 prove that, considering residual functional capacity ( RFC )1, age, 9 education, and work experience, a claimant can perform other work Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is 10 which is available in significant numbers. Tackett, 180 F.3d at 1098, 11 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. 12 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 13 Here, the ALJ found that plaintiff had not engaged in substantial 14 gainful activity since his alleged disability onset date (step one); 15 that plaintiff had severe impairments, namely degenerative joint and 16 disc disease of the cervical and lumbar spine, torn left knee 17 ligament, and adjustment disorder (step two); and that plaintiff did 18 not have an impairment or combination of impairments that met or 19 equaled a listing (step three). 20 plaintiff had an RFC for light work with the exception of standing or 21 walking occasionally (two out of eight hours per day), no significant 22 pushing or pulling with the left leg, no significant walking on uneven [AR 16, 18.] The ALJ found that 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 terrain, no significant climbing or balancing, only occasional 2 overhead lifting, and only occasional stooping, kneeling, crouching or 3 crawling. [AR 18.] 4 from performing his past relevant work (step four). [AR 20.] 5 vocational expert testified that a person with plaintiff s RFC could 6 perform work existing in significant numbers in the national economy, 7 such as food and beverage order clerk, paramutual ticket checker, and 8 telephone quotation clerk (step five). [AR 20-21.] 9 plaintiff was found not disabled as defined by the Social Security The ALJ found that this would preclude plaintiff The Accordingly, 10 Act. [AR 21.] 11 C. 12 The Joint Stipulation identifies six disputed issues: 13 1. 14 15 Whether the ALJ properly considered the opinion of Dr. Khalid Ahmed; 2. 16 17 ISSUES IN DISPUTE Whether the ALJ properly considered the opinion of Dr. Grace Roark; 3. 18 Whether the ALJ properly considered evidence of plaintiff s depression; 19 4. Whether the ALJ properly considered plaintiff s testimony; 20 5. Whether the ALJ properly considered plaintiff s RFC; and 21 6. Whether the ALJ posed a complete hypothetical question to 22 the vocational expert. 23 [JS 2-3.] 24 D. 25 In September 2003, while he was working as a warehouse worker, ISSUE ONE: DR. AHMED 26 plaintiff injured himself when a forklift ran over his left foot, 27 causing him to twist his body while trying to pull away. [AR 291-92.] 28 Dr. Ahmed conducted an initial orthopedic evaluation in October 2003 6 1 and recommended additional testing. [AR 291.] In November 2003, Dr. 2 Ahmed diagnosed lumbar disc herniation, left foot hypertrophy and left 3 knee internal derangement. [AR 280.] Following additional visits in 4 October 2003, November 2003, and April 2004, Dr. Ahmed completed a 5 permanent and stationary report in July 2004. [AR 252-63.] 6 concluded that plaintiff was permanently partially disabled and that 7 his pain would reach a severe level if he stood for more than 35 to 8 40 minutes, walked for more than 35 to 40 minutes, walked over uneven 9 ground, or attempted kneeling, squatting and climbing. [AR 260.] Dr. Ahmed Dr. 10 Ahmed also concluded that plaintiff suffered definitive loss in terms 11 of unrestricted gainful employment in the open labor market and that 12 he was a qualified injured worker in need of vocational 13 rehabilitation.2 [AR 261.] 14 In October 2005, Dr. Ahmed was presented with a sub rosa video 15 from plaintiff s worker s compensation case showing plaintiff 16 performing chores in March 2005. [AR 227.] 17 pushing a child in a grocery cart, shopping for approximately two 18 hours, driving to a laundromat, folding laundry, and periodically 19 carrying the child while finishing the chores. [AR 228-29.] 20 the video, Dr. Ahmed stated that the video appears to show that 21 [plaintiff] does have the ability for prolonged standing and walking 22 but that the video did not show spontaneous motion of the neck, the 23 lumbar spine, and the ability to kneel and squat. [AR 229.] 24 The video showed plaintiff Based on Almost one year later, in July 2006, Dr. Ahmed completed a 25 26 27 28 2 In worker s compensation terms, a qualified injured worker is eligible for vocational rehabilitation when he is precluded from engaging in his past work and rehabilitation services would help him return to suitable gainful employment. See Gamble v. Workers Comp. Appeals Board, 143 Cal. App. 4th 71, 81, 49 Cal. Rptr. 3d 36 (2006). 7 1 questionnaire regarding Medical Opinion Re: Ability to Do Work-Related 2 Activities (Physical). [AR 450-52.] 3 things, that plaintiff could lift twenty pounds occasionally and ten 4 pounds frequently, stand, walk and sit for less than two hours in an 5 eight-hour workday, that he could not sit or stand for more than five 6 minutes before changing position, and that he could not walk for more 7 than ten minutes at a time. [AR 450-51.] 8 plaintiff s impairments would cause him to be absent from work more 9 than three times per month. [AR 452.] 10 Dr. Ahmed opined, among other Dr. Ahmed also stated that In the administrative opinion, the ALJ summarized Dr. Ahmed s 11 treatment of plaintiff and the questionnaire. [AR 17, 19.] As to the 12 latter, the ALJ stated that Dr. Ahmed s questionnaire was a check- 13 the-box type form without any comment [and] can be given little weight 14 especially given the lack of related findings in his notes. [AR 17.] 15 The ALJ also found it inconsistent with Dr. Ahmed s findings in 2004 16 . . . and his repeated statements in his notes that the claimant s 17 condition continued to be permanently partially disabled. [AR 19.] 18 Although the ALJ found that Dr. Ahmed s opinion was not entitled to 19 controlling weight, the ALJ s RFC determination, which limited 20 Plaintiff to light work with two hours of standing or walking in an 21 eight-hour workday, was consistent in some respects with Dr. Ahmed s 22 opinion. [AR 18.] 23 Ahmed s opinion was not supported by substantial evidence. [JS 3-5.] 24 Plaintiff argues that the ALJ s analysis of Dr. The Ninth Circuit held in Lester v. Chater, 81 F.3d 821 (9th Cir. 25 1995), that more weight should be given to the opinions of treating 26 doctors over non-treating doctors. 27 opinion of a treating doctor that has been controverted by the opinion 28 of another physician, the ALJ must provide specific and legitimate If the ALJ chooses to reject the 8 1 reasons supported by substantial evidence in the record for doing 2 so.3 3 most restrictive limitations in Dr. Ahmed s opinion satisfy that 4 standard. 5 standing to five minutes at a time, walking to less than ten minutes 6 at a time, and would be absent from work more than three days per 7 month was wholly inconsistent with his earlier findings, such as his 8 evaluation of the sub rosa video that plaintiff was capable of 9 prolonged standing and walking, as well as his conclusion that 10 plaintiff was only permanently partially disabled; the record 11 contains no explanation for the inconsistency. 12 Barnhart, 340 F.3d 871 (9th Cir. 2003) (contradicted opinion of a 13 treating physician was properly rejected as not supported by treatment 14 notes); Morgan v. Chater, 169 F.3d 595, 603 (9th Cir. 1999)(holding 15 that the ALJ permissibly relied on inconsistencies within and between 16 the reports of the treating and examining doctors to reject their 17 opinions); Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per 18 curiam) (holding that the ALJ was entitled to reject a treating 19 physician s opinion because, among other things, his report varied 20 from his treatment notes). 21 give full credit to Dr. Ahmed s opinion. Id. at 830. Here, the reasons stated by the ALJ to reject the Dr. Ahmed s opinion that plaintiff should be limited in See Connett v. Accordingly, the ALJ properly declined to 22 E. ISSUE TWO: DR. ROARK 23 In April 2006, plaintiff visited Dr. Grace Roark for an initial 24 psychological pain evaluation. [AR 424.] Dr. Roark made a mental 25 status evaluation and administered psychological tests. [AR 426-35.] 26 3 27 28 Here, Dr. Ahmed s opinion was controverted by the opinion of an examining physician, Dr. Thomas Dorsey, who concluded in an orthopedic consultation that plaintiff had no impairment-related physical limitations. [AR 304.] 9 1 Dr. Roark concluded that plaintiff had an adjustment disorder due to 2 chronic pain and that his pain had triggered emotional symptoms. [AR 3 436.] 4 psychological disability, but are an expected reaction and adjustment 5 to his continuous experience of pain. [Id.] 6 eight weeks of biofeedback therapy, with the goals that plaintiff use 7 his relaxation skills and alleviate tension. [AR 437.] 8 eight weeks later, Dr. Roark conducted a final treatment summary. [AR 9 419.] Dr. Roark commented that, Such symptoms do not constitute a Dr. Roark recommended Approximately Dr. Roark noted that plaintiff had demonstrated his ability to 10 utilize techniques taught to him to reduce stress and tension and 11 noted feeling better periodically with psychotropic medications. 12 [Id.] 13 ( GAF ) score of 584 and commented that he should continue to 14 practice techniques learned in biofeedback and stress management 15 therapy. [AR 422.] 16 Dr. Roark assigned plaintiff a Global Assessment of Functioning In the administrative decision, the ALJ summarized the treatment 17 plaintiff received under Dr. Roark s supervision, including her 18 assignment of the 58 GAF score and her recommendation that plaintiff 19 continue with stress management techniques. [AR 17.] 20 noted that Dr. Roark had not been aware of the sub rosa video. [Id.] 21 Plaintiff contends that the ALJ failed to properly consider Dr. 22 Roark s highly probative opinion. [JS 9.] 23 record, however, Dr. Roark s opinion was not highly probative as to 24 the issue of disability. The ALJ also Upon review of the Dr. Roark reported that plaintiff s symptoms 25 4 26 27 28 A GAF score measures the patient s ability to function on a scale of 1 to 100. A score of 51 to 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Attorneys Medical Deskbook (Third), Pt. 4, Ch. 11, §11:6 (2004). 10 1 were not disabling from a psychological standpoint, that he learned 2 effective techniques in biofeedback therapy, that he had a GAF score 3 reflecting moderate symptoms, and that he should continue to use the 4 techniques learned in therapy. Dr. Roark did not opine that plaintiff 5 would be functionally limited in any way by his emotional symptoms; 6 however, the ALJ did credit her opinion by finding that plaintiff s 7 adjustment disorder was a severe impairment. 8 circumstances, the ALJ s discussion of Dr. Roark s opinion was not 9 erroneous. Under these 10 F. ISSUE THREE: DEPRESSION 11 In late 2006, plaintiff received one month of psychiatric 12 treatment from Dr. Ochuko Diamreyan. [AR 443-49.] Plaintiff 13 complained of severe depression and insomnia since the injury. [AR 14 444, 448.] 15 that he was not hearing voices or experiencing paranoia. [AR 445.] 16 Dr. Diamreyan made a diagnosis of major depression with a GAF score of 17 405 and prescribed Cymbalta. [AR 444.] In his final visit, plaintiff reported sleeping better and 18 In the administrative decision, the ALJ noted the one-month 19 treatment with Dr. Diamreyan, the diagnosis of major depression, the 20 prescription for Cymbalta, and the GAF score of 40. [AR 17.] The ALJ 21 also noted that Dr. Diamreyan, like Dr. Roark, had not seen the sub 22 rosa video. [Id.] 23 determinable mental impairments, involving reactive anxiety and The ALJ found that plaintiff s medically 24 25 26 27 28 5 A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). 11 1 depression, with reference to the B criteria for the evaluation of 2 mental disorders,6 do not cause more than minimal limitation in the 3 claimant s ability to perform basic mental work activities and is 4 therefore nonsevere. [AR 16.] 5 Plaintiff argues that the ALJ did not properly consider Dr. 6 Diamreyan s opinion that plaintiff has major depression. [JS 15.] 7 However, based on the lack of evidence in the record that plaintiff 8 had any significant limitations in mental functioning, the ALJ 9 properly determined that plaintiff s depression was not severe. Dr. 10 Diamreyan s diagnosis was unaccompanied by any findings that plaintiff 11 had any functional deficits in relation to work ability; neither is 12 there any evidence in the record of such limitations. 13 unexplained GAF score of 40, by itself, was not essential to the 14 accuracy of the ALJ s findings. 15 Sec., 276 F.3d 235, 241 (6th Cir. 2002). 16 error. Moreover, the See Howard v. Commissioner of Social Accordingly, there was no 17 G. 18 During the administrative hearing, plaintiff testified that he ISSUE FOUR: CREDIBILITY 19 experiences pain and fatigue and has to lie down for up to three- 20 fourths of the day; he also complained of depression and lack of 21 concentration. [AR 42-43.] 22 described plaintiff s testimony and found that, although plaintiff s 23 medically determinable impairments could reasonably be expected to 24 produce the alleged symptoms, his statements concerning the intensity, 25 persistence and limiting effects of these symptoms was not entirely In the administrative decision, the ALJ 26 6 27 28 The four areas of mental functioning that are evaluated under the B criteria are activities of daily living; social functioning; concentration, persistence or pace; and episodes of decompensation. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00C. 12 1 credible. [AR 19.] The ALJ noted that the treating medical records 2 indicated no change in plaintiff s condition since he became permanent 3 and stationary in 2004, that the objective medical findings were mild, 4 that his treatment had been limited and fairly conservative except for 5 epidural injections, and that there was no evidence of the need for 6 more aggressive treatment or further testing and evaluation. [Id.] 7 The ALJ also cited the sub rosa video and the lack of credible 8 evidence of any significant ongoing psychiatric or mental health 9 treatment. [AR 19-20.] 10 Plaintiff contends that this credibility evaluation was not 11 legally sufficient under the Ninth Circuit s standard. [JS 18, citing 12 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001).] 13 review of the record, however, it is evident that the ALJ provided 14 clear and convincing reasons to find plaintiff s allegations not 15 entirely credible. 16 Cir. 1991)(en banc)(ALJ may rely on lack of objective medical evidence 17 to support severity of plaintiff s subjective symptom testimony as 18 long as it is not the only reason); Fair v. Bowen, 885 F.2d 597, 604 19 n. 5 (9th Cir. 1989)(ALJ may use ordinary techniques of credibility 20 evaluation, such as plaintiff s reputation for truthfulness); Meanel 21 v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ properly 22 considered, as part of his credibility evaluation, the treating 23 physician s failure to prescribe, and the claimant s failure to 24 request, medical treatment commensurate with the degree of pain 25 alleged). Upon See Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th 26 H. 27 Finally, plaintiff contends that the ALJ s determination of his 28 ISSUES FIVE AND SIX: RFC AND HYPOTHETICAL QUESTIONS RFC and the hypothetical questions posed to the vocational expert 13 1 failed to take into account the limitations set out in the opinions of 2 Dr. Ahmed and Dr. Diamreyan. [JS 22, 26.] 3 however, the ALJ provided legally sufficient reasons for why these 4 opinions should not be fully credited. 5 not warrant reversal. 6 VI. As discussed above, Accordingly, these issues do ORDERS 7 Accordingly, IT IS ORDERED that: 8 1. The decision of the Commissioner is AFFIRMED. 9 2. This action is DISMISSED WITH PREJUDICE. 10 3. The Clerk of the Court shall serve this Decision and Order 11 and the Judgment herein on all parties or counsel. 12 13 14 15 DATED: February 2, 2009 ___________/S/___________________ CARLA M. WOEHRLE United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.