Jaime Hernandez v. Michael J Astrue, No. 5:2008cv01956 - Document 18 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman. (See document for further details). For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. (wr)
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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 JAMIE HERNANDEZ, 13 Plaintiff, 14 v. 15 MICHAEL J. ASTRUE, Commissioner of Social Security, 16 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 08-01956-MLG MEMORANDUM OPINION AND ORDER 19 Plaintiff Jamie 20 Commissioner s denial 21 ( SSDI ) benefits and Supplemental Security Income ( SSI ) benefits 22 under the Social Security Act. For the reasons stated below, the 23 decision of the Social Security Commissioner is AFFIRMED. Hernandez of his seeks application judicial for review Disability of the Insurance 24 25 I. Facts and Procedural History 26 Plaintiff was born on October 31, 1956, and his work history 27 includes employment as a master mechanic. (Administrative Record ( AR ) 28 115, 91.) Plaintiff has not been gainfully employed since February 20, 1 2005, when he was in a serious car accident in which he fractured his 2 spine, right femur, and ribs. (AR 16.) More specifically, Plaintiff 3 sustained injuries summarized as follows: 4 A CT of the lumbar spine performed on February 20, 2005, 5 showed mild L1 compression fracture of the anterosuperior 6 endlplate [sic] and there was bilateral transverse process 7 fractures 8 fractures with a comminuted fracture of the left posterior 9 12th rib[]. Diagnostic imaging of the right femur showed 10 evidence of a spiral fracture of the mid shaft of the right 11 humerous[]. The claimant underwent T11 through L1 spinal 12 fusion with instrumentation as well as open reduction internal 13 fixation of the right femur[]. Subsequently, recovery was 14 complicated by distension of the colon for three days as well 15 as right lower lobe collapse with difficulty breathing, and 16 the claimant underwent fiberoptic bronchoscopy with lavage[]. 17 The claimant s condition stabilized and he was started on 18 physical therapy, occupational therapy, and pain management[]. 19 However, he continued to experience pain despite treatment and 20 strong medication including morphine and Duragesic patch[]. He 21 also has numbness with weakness in his right lower extremity. at L1 and 22 (AR 23 continues 24 L2[]. There also was multiple rib medications, and depression. 16 (internal to citations suffer from omitted)). ongoing Plaintiff pain, side contends effects that from he his 25 Plaintiff filed an application for SSDI and SSI benefits on August 26 11, 2005. (Joint Stipulation ( Joint Stip. ) 2.) The Commissioner denied 27 Plaintiff s application on December 29, 2005, (AR 65), and again on 28 January 27, 2006, upon reconsideration. (AR 59.) Administrative Law 2 1 Judge ( ALJ ) F. Keith Varni held a hearing on July 23, 2007, at which 2 Plaintiff testified and was represented by counsel. (AR 27-36.) A 3 vocational expert also testified at the hearing. 4 On August 29, 2007, the ALJ determined that Plaintiff was disabled 5 for a closed period of time beginning February 20, 2005, through April 6 24, 2007, at which time Plaintiff s condition had improved to the extent 7 that he was no longer disabled. (AR 18, 21-22.) The Social Security 8 Administration Appeals Council denied Plaintiff s request for review on 9 November 13, 2008, and Plaintiff filed this action on January 12, 2009. 10 Plaintiff alleges that the ALJ erred as follows: (1) by failing to 11 properly 12 effects from Plaintiff s medication and the need for a cane; (2) by 13 failing to properly consider the side effects of Plaintiff s medication 14 in reaching the disability determination; (3) by improperly discounting 15 Plaintiff s credibility; and (4) by posing an incomplete hypothetical to 16 the vocational expert who testified at the hearing. (Joint Stip. 3.) 17 Plaintiff asks this Court to order an award of benefits or, in the 18 alternative, to remand for a new administrative hearing. (Joint Stip. 19 22.) consider the treating physician s opinion regarding side 20 21 II. 22 Standard of Review The Court must uphold the Social Security Administrations s 23 disability determination unless it is not supported by substantial 24 evidence or is based on legal error. Ryan v. Comm r of Soc. Sec., 528 25 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm r of Soc. Sec. 26 Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means 27 more than a scintilla, but less than a preponderance; it is evidence 28 that a reasonable person might accept 3 as adequate to support a 1 conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 3 2006)). To determine whether substantial evidence supports a finding, 4 the reviewing court must review the administrative record as a whole, 5 weighing both the evidence that supports and the evidence that detracts 6 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 7 720 (9th Cir. 1996). If the evidence can support either affirming or 8 reversing the ALJ s conclusion, the reviewing court may not substitute 9 [its] judgment for that of the ALJ. Robbins, 466 F.3d at 882. 10 11 III. Disability Analyses 12 Upon receiving a claim for disability benefits, the Commissioner 13 must undertake a five-step sequential analysis to determine whether a 14 claimant is disabled under the Social Security Act. The Commissioner 15 must consider the following questions: (1) whether the claimant is 16 engaged in substantial gainful activity; (2) whether the claimant s 17 impairment is severe ; (3) whether the impairment meets or equals one 18 of the listings in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) whether 19 the claimant is able to return to past relevant work; and (5) whether 20 the claimant can do other types of work. 20 C.F.R. § 404.1520(a)(4). 21 These steps are cumulative, meaning that the Commissioner need not 22 consider further steps after finding that a step does not favor the 23 claimant. 24 Once the Commissioner concludes that a claimant is disabled, the 25 Commissioner may conduct a different analysis to determine whether the 26 disability 27 requires an eight-step inquiry involving the following questions: (1) 28 whether the claimant is engaged in substantial gainful activity; (2) is continuing. 20 C.F.R. 4 § 404.1594(f). This analysis 1 whether the impairment meets or equals one of the listings in 20 C.F.R. 2 § 404, Subpart P, Appendix 1; (3) whether there has been medical 3 improvement as shown by a decrease in medical severity; (4) whether the 4 improvement is related to the individual s ability to do work; (5) in 5 the absence of medical improvement related to work, whether any of the 6 specified exceptions apply that would render the claimant not disabled; 7 (6) whether the impairments are severe ; (7) whether the claimant can 8 perform past relevant work; (8) whether the claimant can do other types 9 of work. 20 C.F.R. § 404.1594(f). 10 11 IV. Discussion 12 The ALJ s conclusion that Plaintiff was disabled for a closed 13 period was based his application of the analyses described above. The 14 ALJ first applied the five-step sequential analysis mandated by the 15 Social Security regulations for initial disability determinations. (AR 16 15-18.) After concluding that Plaintiff was disabled as of February 20, 17 2005, the ALJ applied the eight-step sequential analysis to determine 18 whether Plaintiff was still disabled as of the hearing date. The ALJ 19 concluded that Plaintiff s disability had ended on April 23, 2007, the 20 day he appeared for an orthopedic evaluation. (AR 18.) 21 The ALJ determined that Plaintiff has not engaged in substantial 22 gainful activity since February 20, 2005, and that Plaintiff s medically 23 determinable impairments did not meet or equal any listed impairment. 24 (AR 25 Plaintiff s ability to work occurred as of April 24, 2007 (AR 18.) The 26 ALJ 27 musculoskeletal system, but that Plaintiff s depression was not a 28 medically determinable impairment. (AR 15.) The ALJ concluded that as of 15, 18.) further The found ALJ that found that Plaintiff 5 medical had improvement severe related impairments in to the 1 April 24, 2007, Plaintiff had the residual functional capacity ( RFC ) 2 to 3 frequently; that he could stand and walk for four hours out of an eight- 4 hour day and sit for six hours; and that he was limited to occasional 5 climbing, 6 determination, the ALJ rejected the opinions of two treating physicians, 7 adopting the examining physician s opinion instead, and discounted 8 Plaintiff s credibility. (AR 18-21.) The ALJ found that Plaintiff could 9 not perform his past relevant work, but that a significant number of 10 jobs existed in the national economy that he could perform, rendering 11 him not disabled under the Social Security Act. (AR 21-22.) lift or carry twenty-five kneeling, and pounds squatting. occasionally (AR 18.) In and ten reaching 12 A. the RFC The Court will now turn to Plaintiff s claims of error. 13 pounds The ALJ Properly Considered the Treating Physician s Opinion 14 Regarding Side Effects from Plaintiff s Medication and Use of 15 a Cane 16 Plaintiff argues that the ALJ failed to consider the opinion of a 17 treating 18 determination. (Joint Stip. 3-5.) Plaintiff s claim is without merit. physician, Thawat Eosakul, M.D., in reaching the RFC 19 On June 6, 2006, Dr. Eosakul filled out a Chronic Pain Residual 20 Functional Capacity Questionnaire. (AR 389-93.) Dr. Eosakul stated that 21 Plaintiff s medications caused nausea and dizziness, and checked a box 22 indicating that Plaintiff needed to use a cane when standing or walking. 23 (AR 390-91.) Dr. Eosakul also checked boxes indicating that Plaintiff 24 had reduced range of motion, affected joints, sensory changes, reflex 25 changes, impaired sleep, weight change, impaired appetite, abnormal 26 posture, positive straight leg raising, tenderness, muscle spasm, muscle 27 weakness, muscle atrophy, abnormal gait, depression, and anxiety. (AR 28 389-90.) Dr. Eosakul opined that Plaintiff s pain would constantly 6 1 interfere with his attention and concentration, and that Plaintiff was 2 severely limited in his ability to deal with work stress. (AR 390.) Dr. 3 Eosakul opined that Plaintiff could continuously sit or stand for no 4 more than fifteen minutes at a time; that he could sit, stand, or walk 5 less than two hours total in an eight-hour day; that he would need to 6 walk for five minutes every thirty minutes, lie down every thirty 7 minutes, and elevate his legs for ten to fifteen minutes two to three 8 times per day. (AR 390-91.) Dr. Eosakul stated that Plaintiff had 9 significant limitations in reaching, handling, or fingering, and he 10 could not bend at the waist at all. (AR 392.) Dr. Eosakul indicated that 11 Plaintiff s impairments did not cause good days and bad days, which, 12 given the significant level of impairment Dr. Eosakul assigned, suggests 13 that all of Plaintiff s days were bad days. (Id.) Dr. Eosakul opined 14 that Plaintiff s impairments prevented him from competing in the open 15 labor market, and that his prognosis was poor. (AR 389-90.) 16 By contrast, the examining physician, Bunsri T. Sophon, M.D., 17 opined that Plaintiff s impairments were much more benign. Dr. Sophon 18 noted that Plaintiff had no deformity and no evidence of swelling, 19 palpable mass, inflamation, tenderness, muscle atrophy or spasm, with 20 normal range of motion in his cervical spine, shoulders, arms, elbows, 21 forearms, wrists, hands, hips, thighs, lower legs, ankles, and feet. (AR 22 406-08.) Dr. Sophon stated that Plaintiff had negative straight leg 23 raising tests, both sitting and supine bilaterally. (AR 406.) Plaintiff 24 had tenderness and paravertebral muscle spasm in the lumbar spine, with 25 flexion at 45/90 degrees, extension at 10/25 degrees, and lateral 26 bending 27 generalized tenderness over the anterior aspect of the right knee, with 28 no evidence of joint effusion or ligamentous instability. The McMurray s 20/25 degrees bilaterally. 7 (AR 406.) Plaintiff also had 1 sign and Lachman s test were negative bilaterally. (AR 407.) Plaintiff s 2 right knee range of motion was zero to 130 degrees, and his left knee 3 range of motion was zero to 135 degrees. (AR 407.) 4 In explaining his findings, Dr. Sophon noted that Plaintiff 5 demonstrates tenderness, muscle spasm and restriction of motion of the 6 thoracolumbar spine. He demonstrates tenderness and minimal restriction 7 of motion of the right knee. (AR 408.) Dr. Sophon opined that Plaintiff 8 could lift and carry twenty-five pounds occasionally and ten pounds 9 frequently, stand and walk four hours out of an eight-hour day, sit for 10 six hours out of an eight-hour day, and only occasional climbing, 11 kneeling, or squatting. (AR 408.) 12 13 The ALJ rejected Dr. Eosakul s opinion, along with another treating physician s opinion, stating: 14 I 15 unsupported even when made in May 2006 and June 2006. I note 16 that the treating physicians completed pre-printed forms 17 indicat[ing] the claimant was limited in fine and gross 18 manipulation, but there is nothing in the medical evidence to 19 support such limitations[]. Furthermore, they both asserted 20 the claimant was unable to perform in the open labor market. 21 However, I note that an opinion regarding work incapacity is 22 partially 23 physicians 24 determining the issue of disability is reserved for the Social 25 Security Administration. find [the a opinions] vocational expertise exaggerated, judgment and the accommodative, which final is beyond responsibility and these for 26 (AR 20 (citation omitted).) The ALJ gave Dr. Eosakul s opinion limited 27 probative weight. 28 The ALJ should generally accord greater probative weight to a 8 1 treating physician s opinion than to opinions from non-treating sources. 2 20 C.F.R. § 404.1527(d)(2). The ALJ must give specific and legitimate 3 reasons for rejecting a treating physician s opinion in favor of a non- 4 treating physician s contradictory opinion. Orn v. Astrue, 495 F.3d 625 5 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). 6 However, the ALJ need not accept the opinion of any medical source, 7 including 8 conclusory, and inadequately supported by clinical findings. Thomas v. 9 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. 10 a treating medical source, if that opinion is brief, Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 11 The ALJ gave clear and convincing reasons for rejecting Dr. 12 Eosakul s opinion. First, the ALJ noted that Dr. Eosakul s opinion 13 indicated excessive severity even in 2006, at time during which the ALJ 14 found Plaintiff to be disabled. Additionally, the ALJ stated that Dr. 15 Eosakul s opinion as to the extent of Plaintiff s disability consisted 16 entirely of checked boxes on a preprinted form. Furthermore, Dr. Eosakul 17 opined that Plaintiff was essentially completely debilitated by his 18 impairments, an opinion that has no support from the medical record. 19 Finally, Dr. Eosakul opined that Plaintiff would have significant 20 fingering limitations, even though Plaintiff has asserted no such 21 impairment and the record provides no evidence of one. Plaintiff is not 22 entitled to relief on this claim. 23 24 B. The ALJ Properly Considered the Type, Dosage, and Side Effects of Plaintiff s Medications 25 Plaintiff contends that the ALJ failed to properly consider the 26 side effects of his medication, including fatigue, nausea and dizziness, 27 in reaching the disability determination, as required by Social Security 28 Ruling ( SSR ) 96-7p, 1996 WL 374186 (S.S.A. 1996). (Joint Stip. 9-10.) 9 1 As evidence of the severity of these side effects, Plaintiff relies on 2 the preprinted form Dr. Eosakul filled out, in which he indicated that 3 Plaintiff suffers from nausea and dizziness, and his own testimony at 4 the hearing. 5 As discussed above, the ALJ need not accept the opinion of any 6 medical source, including a treating medical source, if that opinion is 7 brief, conclusory, and inadequately supported by clinical findings. 8 Thomas, 278 F.3d at 957. Nothing in Plaintiff s medical records supports 9 the argument that these side effects preclude him from working. Except 10 for Dr. Eosakul s comments on a single form, there is no mention in the 11 medical record of nausea and dizziness. Additionally, the only evidence 12 of Plaintiff s fatigue is his testimony at the hearing. As discussed 13 above, 14 discussed below, he properly discounted Plaintiff s credibility as to 15 the impact of his subjective symptoms on his ability to work. The ALJ 16 properly addressed the impact of Plaintiff s side effects, and his 17 decision is supported by substantial evidence in the record. Plaintiff 18 is not entitled to relief on this claim. the ALJ properly rejected Dr. Eosakul s opinion, and, as 19 C. 20 Plaintiff argues that the ALJ erred by improperly discounting his 21 credibility in evaluating the extent to which his subjective symptoms 22 interfered with his ability to work. (Joint Stip. 13.) At the hearing, 23 Plaintiff complained of dizziness, fatigue, and pain in his back, thigh, 24 and knee. (Joint Stip. 13.) The ALJ found that Plaintiff s medically 25 determinable impairments could reasonably be expected to produce the 26 alleged 27 persistence, and limiting effects of his symptoms were not credible. (AR 28 19.) The ALJ noted that [t]he claimant s current treatment appears to The ALJ Properly Assessed Plaintiff s Credibility symptoms, but that his statements 10 as to the intensity, 1 be minimal and ad hoc to nonexistent, and that the record shows his 2 pain was adequately controlled by medication. (AR 19-20.) Additionally, 3 the ALJ stated that Plaintiff was discharged from physical therapy, and 4 nothing 5 treatment. (AR 20.) The ALJ also noted that although the records show 6 some tenderness and limited range of motion in the spine, 7 evidence of neurological deficits, diminished sensation, or atrophy in 8 any area. (AR 20.) The ALJ stated that Plaintiff s side effects had not 9 been in the record established or suggested documented, he and should that have more Plaintiff aggressive there is no had not been 10 forthcoming about his activities of daily living, such as driving. The 11 ALJ concluded, 12 Accordingly, in consideration of the evidence, I find no 13 credible basis to assess limitations beyond those set forth 14 above. Certainly the claimant s allegations of being totally 15 debilitated are not borne out by the evidence. The claimant 16 has 17 complaints and since April 2007, his physical complaints have 18 apparently 19 management. In light of these factors, I cannot find any basis 20 to assess limitations beyond those set forth above. 21 received essentially warranted no no treatment treatment for beyond his mental medication (AR 21.) 22 In evaluating a claimant s assertions of subjective pain or other 23 symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 24 547 F.3d 1101, 1104 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 25 1028, 135-36 (9th Cir. 2007). First, the ALJ must determine whether the 26 objective medical evidence demonstrates the existence of an impairment 27 that could reasonably be expected to produce the pain or other symptoms 28 alleged. Lingenfelter, 504 F.3d at 1036 (citing Bunnell v. Sullivan, 947 11 1 F.2d 341, 344 (9th Cir. 1991)(en banc)). Second, if the claimant meets 2 the first test and absent evidence of malingering, the ALJ may reject 3 the alleged severity of the claimant s symptoms only by offering clear 4 and convincing reasons for doing so. Id. (citing Robbins v. Soc. Sec. 5 Admin., 466 F.3d 880, 883 (9th Cir. 2006); Smolen v. Chater, 80 F.3d 6 1273, 1281 (9th Cir. 1996)). Where an individual s claimed functional 7 limitations and restrictions due to the alleged symptoms are reasonably 8 consistent with objective medical and other evidence in the case, the 9 ALJ must credit the claimant s allegations. SSR 96-7p, 1996 WL 374186, 10 at * 2 (S.S.A. July 2, 1996) (explaining 20 C.F.R. §§ 404.1529(c)(4), 11 416.929(c)(4)). 12 Additionally, the ALJ is entitled to draw negative inference 13 regarding a claimant s credibility arising from a failure to seek 14 treatment, absent a reasonable justification for that failure. Flaten v. 15 Sec y of Health & Human Serv., 44 F.3d 1453, 1464 (9th Cir. 1995). The 16 Ninth Circuit recently stated: 17 Our case law is clear that if a claimant complains about 18 disabling pain but fails to seek treatment, or fails to follow 19 prescribed treatment[] for the pain, an ALJ may use such 20 failure as a basis for finding the complaint unjustified or 21 exaggerated. 22 Orn, 495 F.3d at 638 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 23 1989)). 24 Plaintiff claims that he suffers from chronic pain, dizziness, and 25 fatigue sufficient to prevent him from any substantial gainful activity, 26 but he has sought almost no treatment for his complaints since 2007. The 27 ALj identified this failure as a reason for doubting the accuracy of 28 Plaintiff s statements, a conclusion that is supported by substantial 12 1 evidence in the record. Accordingly, the ALJ gave specific, clear, and 2 convincing reasons for discounting Plaintiff s credibility, and he is 3 not entitled to relief on this claim. 4 D. The ALJ Posed a Proper Hypothetical to the Vocational Expert 5 Plaintiff contends that the ALJ s hypothetical to the vocational 6 expert improperly omitted reference to Plaintiff s use of a cane and the 7 side effects he allegedly experienced from his medications. (Joint Stip. 8 18-20.) A hypothetical posed to a vocational expert must contain all the 9 limitations of a particular claimant. DeLorme v. Sullivan, 924 F.2d 841, 10 850 (9th Cir. 1991)(citations omitted). However, the ALJ need only 11 include in the hypothetical those limitations that are supported by 12 substantial evidence in the record. Osenbrock v. Apfel, 240 F.3d 1157, 13 1164-65 (9th Cir. 2001). Having determined that Plaintiff s side effects 14 and claimed use of a cane were not significant limitations to his 15 functioning, the ALJ appropriately omitted reference to those alleged 16 limitations in posing the hypothetical to the vocational expert. 17 The Court concludes that the ALJ posed an appropriate hypothetical 18 to the vocational expert, containing all of Plaintiff s limitations as 19 found by the examining and reviewing physicians and adopted by the ALJ. 20 The ALJ properly relied on the vocational expert s opinion, and the 21 decision is supported by substantial evidence in the record. 22 23 24 V. Conclusion For the reasons stated above, the decision of the Social Security 25 Commissioner is AFFIRMED. 26 DATED: September 9, 2009 27 28 _ _ _ _ _ _ _ _ _________ _ _ _ _ _ _ _ _ _ _ _ _ _ MARC L. GOLDMAN United States Magistrate Judge 13
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