Chamroeurn Phonn v. Michael J. Astrue, No. 5:2009cv01285 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Agencys decision is affirmed and the case is dismissed with prejudice. IT IS SO ORDERED. (ca)
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Chamroeurn Phonn v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CHAMROEURN PHONN, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 09-1285-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal from a decision by 19 Defendant Social Security Administration ( the Agency ), denying his 20 application for supplemental security income ( SSI ). 21 claims that the Administrative Law Judge ( ALJ ) erred when he: 22 1) failed to properly consider the opinion of Plaintiff s treating 23 physician; 2) failed to develop the record with respect to the 24 treating physician s opinion; and 3) concluded that Plaintiff could 25 perform the jobs of hand packager and kitchen helper. 26 Agency s decision that Plaintiff was not disabled within the meaning 27 of the Social Security Act is supported by substantial evidence, it is 28 affirmed. Plaintiff Because the Dockets.Justia.com 1 2 II. SUMMARY OF PROCEEDINGS Plaintiff applied for SSI on March 16, 2006, alleging that he had 3 been unable to work since January 1, 1999, because of asthma and back 4 and neck pain. 5 Agency denied the application initially and on reconsideration. 6 52-56, 59-63.) Plaintiff then requested and was granted a hearing 7 before an ALJ. (AR 65, 73-75.) 8 with counsel and testified. 9 requested and was granted a supplemental hearing, at which a medical (Administrative Record ( AR ) 10, 114, 118.) The (AR Plaintiff appeared at the hearing (AR 21-32.) Subsequently, Plaintiff 10 expert and a vocational expert testified. 11 2003, the ALJ issued a decision, finding that Plaintiff was not 12 disabled. 13 which denied review. (AR 10-18.) (AR 33-48.) On July 16, Plaintiff appealed to the Appeals Council, (AR 1-4.) 14 He then commenced this action. III. DISCUSSION 15 1. The ALJ s Rejection of the Treating Physician s Opinion 16 In his first claim of error, Plaintiff contends that the ALJ 17 erred when he rejected the treating doctor s opinion. 18 5, 10-11.) 19 ALJ s rejection of the treating doctor s opinion was not erroneous. 20 (Joint Stip. 3- For the following reasons, the Court concludes that the A treating physician s opinion is generally entitled to greater 21 weight than a non-treating physician s opinion. See Andrews v. 22 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. 23 Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); Sprague v. Bowen, 812 F.2d 24 1226, 1230 (9th Cir. 1987). 25 however, necessarily conclusive as to either a physical condition or 26 the ultimate issue of disability. 27 weight given a treating physician s opinion depends on whether it is 28 supported by sufficient medical data and whether it is consistent with The treating physician s opinion is not, Magallanes, 881 F.2d at 751. 2 The 1 other evidence in the record. 2 as here, the treating physician s opinion is contradicted, an ALJ may 3 reject the opinion by providing specific and legitimate reasons 4 for doing so that are supported by substantial evidence. 5 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (quoting Reddick v. 6 Chater, 157 F.3d 715, 720 (9th Cir. 1998). 7 See 20 C.F.R. ยง 404.1527(d)(2). Where, Rollins v. In 2005 and 2006, Dr. Truong completed three pre-printed, check- 8 the-box forms in which he repeatedly opined that Plaintiff s asthma 9 and fatigue left him unable to work. (AR 188-91.) Subsequently, in 10 2007, at the request of Plaintiff s attorney, Dr. Truong filled out 11 another, slightly more detailed form, in which he indicated, among 12 other things, that Plaintiff s asthma would cause him to miss work 13 about twice a month and that Plaintiff should avoid exposure to 14 various air pollutants and extreme cold and heat. 15 (AR 220-21.) The ALJ ultimately rejected Dr. Truong s opinion. In doing so, 16 he found that Dr. Truong had failed to include any basis for his 17 conclusions contained in the check-the-box forms and that the medical 18 record did not support these conclusions. 19 noted that Dr. Truong s opinion could not be reconciled with his 20 treatment notes or with the relatively conservative treatment that he 21 had prescribed for Plaintiff. 22 Dr. Truong s opinion regarding the purportedly debilitating impact of 23 Plaintiff s asthma conflicted with other medical evidence in the 24 record. 25 discounting Dr. Truong s opinion and they are supported by substantial 26 evidence in the record. 27 be disturbed. 28 2003) (holding ALJ properly rejected treating physician's opinion (AR 14.) (AR 14.) (AR 14.) The ALJ also Further, the ALJ found that These are specific and legitimate reasons for For this reason, the ALJ s decision will not See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 3 1 where physician's extensive conclusions regarding [claimant's] 2 limitations are not supported by his own treatment notes ); see also 3 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding 4 that ALJ properly discredited doctor s opinion where doctor s 5 responses to questionnaire were inconsistent with doctor s own medical 6 records).1 Plaintiff argues that, because the ALJ did not specifically 7 8 discuss each finding in Dr. Truong s Residual Functioning Capacity 9 Report (AR 220-21), the matter must be remanded. Again, the Court 10 disagrees. An ALJ is not required to discuss every piece of evidence 11 in the record. 12 1012 (9th Cir. 2003) (holding ALJ is not required to discuss every 13 piece of evidence so long as the decision is supported by substantial 14 evidence). 15 evidence has been rejected. 16 (9th Cir. 1984) (per curiam). 17 that. 18 asthma would preclude him from working was not supported by the 19 record. 20 Truong, e.g., that Plaintiff s asthma would cause him to miss two days 21 of work each month or that he should not be in an environment with 22 extreme heat or cold. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, Rather, he need only explain why significant probative Vincent v. Heckler, 739 F.2d 1393, 1395 And, as explained above, the ALJ did He found that Dr. Truong s overall opinion that Plaintiff s He was not required to discuss each conclusion drawn by Dr. For these reasons, this claim is denied. 23 24 25 26 27 28 1 The strength and persuasiveness of a treating doctor s opinion stem from the medical records that the doctor accumulates over the course of treatment of the patient. Where, as here, the records do not support the doctor s opinion, the opinion is rendered weak and unpersuasive. 4 1 2. The ALJ s Failure to Develop the Record 2 Plaintiff contends that, if the ALJ believed that Dr. Truong s 3 treatment records were insufficient to support his conclusion that 4 Plaintiff was disabled, he should have obtained additional records 5 from Dr. Truong. 6 For the following reasons, the Court disagrees. Though an ALJ has a special duty to fully and fairly develop the 7 record, even when a claimant is represented by counsel, that duty is 8 not triggered unless the record is ambiguous or inadequate for proper 9 evaluation. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 10 2001). 11 records submitted from his office. 12 was discounted was because the treatment records did not support the 13 level of impairment found by him. 14 rendered his decision, Plaintiff has not presented anything from Dr. 15 Truong that would call into question the ALJ s findings regarding Dr. 16 Truong s opinion. 17 18 19 3. There was nothing ambiguous about Dr. Truong s opinion or the The reason Dr. Truong s opinion And, in the two years since the ALJ As such, these claims do not merit relief. The ALJ s Finding that Plaintiff Could Perform Work as a Hand Packager and as a Kitchen Helper In his third claim of error, Plaintiff contends that the ALJ 20 erred when he accepted the vocational expert s testimony that 21 Plaintiff could perform the jobs of hand packager and kitchen helper, 22 despite the fact that Dr. Truong concluded that Plaintiff should not 23 be exposed to extreme heat or cold and the ALJ found that Plaintiff 24 should not be around hazardous machinery. 25 the following reasons, this claim is rejected. 26 (Joint Stip. 12-15.) For A hypothetical question that does not include all of a claimant s 27 properly supported restrictions is legally inadequate. 28 Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). 5 Robbins v. An ALJ may, 1 however, limit the hypothetical to only those restrictions that are 2 supported by substantial evidence in the record. 3 427 F.3d 1211, 1217 (9th Cir. 2005). 4 Bayliss v. Barnhart, As noted above, the ALJ properly rejected Dr. Truong s opinion, 5 which included a restriction for working in extreme heat or cold. 6 this reason, he was not required to include this limitation in the 7 hypothetical question to the vocational expert. 8 (upholding ALJ's hypothetical question that contained only limitations 9 found credible and supported by substantial evidence in the record). 10 For Id. at 1217-18 Plaintiff argues that the vocational expert must have deviated 11 from the Dictionary of Occupational Titles ( DOT ) as to the kitchen 12 helper job because that job requires the use of a knife to peel 13 vegetables and the ALJ found that Plaintiff should not be around 14 hazardous machinery. 15 rejected. 16 about this case suggests that Plaintiff was restricted from using a 17 knife, which he presumably uses on a daily basis to cut his food when 18 he eats. 19 (Joint Stip. at 13-14.) This argument is A knife is a tool; it is not a hazardous machine. Nothing Similarly, Plaintiff s argument that he could not perform the 20 kitchen helper and hand packager jobs as described in the DOT because 21 both required him to operate a conveyor belt, another hazardous 22 machine, is also without merit. 23 for the proposition that a conveyor belt is a hazardous machine and 24 the Court has not found any on its own. Plaintiff has provided no authority 25 26 27 28 6 Common sense suggests that it 1 is not. That, combined with the fact that the vocational expert 2 testified that he was not departing from the DOT, is enough to uphold 3 the ALJ s finding on this issue. 4 5 IV. CONCLUSION For these reasons, the Agency s decision is affirmed and the case 6 is dismissed with prejudice. 7 IT IS SO ORDERED. 8 DATED: July 20, 2010. 9 10 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\PHONN\M&O Phonn (09-1285 (PJW)).wpd 7
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