Larry Larson v. Michael J. Astrue, No. 5:2010cv00069 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Larry Larson filed this action on February 3, 2010. Pursuant to 28 U.S.C. §636(c), the parties consented to proceed before the magistrate judge on March 4,2010. (Dkt. Nos. 8 , 9.) On October 7, 2010, the parties filed a Joint Stipulation(JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LARRY LARSON, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 10-069 AGR MEMORANDUM OPINION AND ORDER 18 Larry Larson filed this action on February 3, 2010. Pursuant to 28 U.S.C. § 19 636(c), the parties consented to proceed before the magistrate judge on March 4, 20 2010. (Dkt. Nos. 8, 9.) On October 7, 2010, the parties filed a Joint Stipulation 21 ( JS ) that addressed the disputed issues. The Court has taken the matter under 22 submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On November 16, 2005, Larson filed an application for disability insurance 4 benefits. Administrative Record ( AR ) 8. On December 13, 2005, Larson filed 5 an application for supplemental security income benefits. Id. In both 6 applications, Larson alleged a disability onset date of December 3, 2004. Id. The 7 applications were denied initially and upon reconsideration. AR 42-46, 48-52. 8 Larson requested a hearing before an Administrative Law Judge ( ALJ ). AR 18. 9 On July 2, 2008, the ALJ conducted a hearing at which Larson and a vocational 10 expert ( VE ) testified. AR 19-37. On August 1, 2008, the ALJ issued a decision 11 denying benefits. AR 5-17. On December 11, 2009, the Appeals Council denied 12 the request for review. AR 1-3. This action followed. 13 II. 14 STANDARD OF REVIEW 15 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 16 decision to deny benefits. The decision will be disturbed only if it is not supported 17 by substantial evidence, or if it is based upon the application of improper legal 18 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 19 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 20 Substantial evidence means more than a mere scintilla but less than a 21 preponderance it is such relevant evidence that a reasonable mind might 22 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 23 determining whether substantial evidence exists to support the Commissioner s 24 decision, the Court examines the administrative record as a whole, considering 25 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 26 evidence is susceptible to more than one rational interpretation, the Court must 27 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that Larson meets the insured status requirements through 12 13 The ALJ s Findings December 31, 2009. AR 10. Larson has the severe impairments of cervical and lumbar discogenic 14 disease. Id. Larson has the residual functional capacity to perform light work, 15 except he has occasional postural restrictions and cannot work with ladders, 16 ropes or scaffolds, cannot tolerate concentrated exposure to cold or vibrations, 17 and is limited to occasional overhead reaching with his left nondominant arm. 18 AR 11. The ALJ found Larson is unable to perform his past relevant work as a 19 welder, but can perform jobs that exist in significant numbers in the national 20 economy, such as electrical assembler and information clerk. AR 15-16. 21 C. 22 Larson argues that the ALJ improperly rejected the opinion of his treating 23 24 Treating Physician physician, Dr. Chae. An opinion of a treating physician is given more weight than the opinion of 25 a non-treating physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To 26 reject an uncontradicted opinion of a treating physician, an ALJ must state clear 27 and convincing reasons that are supported by substantial evidence. Bayliss v. 28 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When, as here, a treating 3 1 physician s opinion is contradicted by another doctor, the ALJ may not reject this 2 opinion without providing specific and legitimate reasons supported by substantial 3 evidence in the record. This can be done by setting out a detailed and thorough 4 summary of the facts and conflicting clinical evidence, stating his interpretation 5 thereof, and making findings. Orn, 495 F.3d at 632 (citations omitted and internal 6 quotations omitted). When the ALJ declines to give a treating physician's opinion 7 controlling weight, the ALJ considers several factors, including the following: (1) 8 the length of the treatment relationship and frequency of examination;1 (2) the 9 nature and extent of the treatment relationship;2 (3) the amount of relevant 10 evidence supporting the opinion and the quality of the explanation provided; (4) 11 the consistency with the record as a whole; and (5) the specialty of the physician 12 providing the opinion. See Orn, 495 F.3d at 631; 20 C.F.R. § 404.1527(d)(1)-(6). 13 When there is conflicting medical evidence, the Secretary must determine 14 credibility and resolve the conflict. Thomas, 278 F.3d at 956-57 (citation and 15 quotation marks omitted). 16 An examining physician's opinion constitutes substantial evidence when it 17 is based on independent clinical findings. Orn, 495 F.3d at 632. However, 18 [w]hen an examining physician relies on the same clinical findings as a treating 19 physician, but differs only in his or her conclusions, the conclusions of the 20 examining physician are not substantial evidence. Id. at 632. A non-examining 21 physician's opinion constitutes substantial evidence when it is supported by other 22 evidence in the record and is consistent with it. Andrews v. Shalala, 53 F.3d 23 24 25 26 27 28 1 Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source. 20 C.F.R. § 404.1527(d)(2)(I). 2 Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. 20 C.F.R. § 404.1527(d)(2)(ii). 4 1 1035, 1041 (9th Cir. 1995). A non-examining physician's opinion cannot by itself 2 constitute substantial evidence. Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 3 (9th Cir. 2006). 4 The ALJ noted that the objective medical findings by the treating 5 physicians and examining physician were generally consistent. AR 14. The ALJ 6 gave greater weight to the opinion of the examining physician, Dr. Sabourin, in 7 assigning limitations as a result of those findings because Dr. Sabourin is an 8 orthopedic surgeon. AR, 14, 141-45. As the ALJ noted, Dr. Chae had 9 recommended a referral to an orthopedic surgeon.3 AR 13, 166, 169. Dr. Chae 10 had only examined [Larson] on one occasion at the time of her musculoskeletal 11 report and her conclusions appeared to be based on subjective complaints. 12 The ALJ properly considered Dr. Chae s specialty, the length of treatment, and 13 the extent to which her opinion was based on subjective complaints. See 20 14 C.F.R. § 404.1527(d)(1)-(6). 15 Dr. Chae first examined Larson at the Riverside Medical Clinic ( RMC ) on 16 February 14, 2006. AR 12, 171. The ALJ acknowledged Larson had been 17 treated at RMC by other physicians since February 2003 and summarized those 18 records. AR 12. In February 2003, Larson complained of cervical spine myalgia 19 with left arm neuralgic pain. AR 12, 121. The examination notes reflected: 20 Cervical spine range of motion was reduced and there was 1+ left trapezius 21 muscle spasm. Motor function was 5 x 5 and [Larson] had subjective 22 neurological deficit . . . on the left hand. Grip was well maintained and peripheral 23 pulses were adequate. AR 12, 121. In April 2004, Larson was treated for 24 tendonitis in his right arm, for which he received a prescription for a splint and 25 sling. AR 12, 124. In August 2004, Larson had generalized degenerative joint 26 disease and obtained refills of Effexor and Vioxx. AR 12, 127. In April 2005, 27 28 3 Dr. Chae s notes indicate Larson refused the referral stating that he cannot afford them. AR 169. 5 1 Larson complained of neck and knee problems. AR 12, 128. He was assessed 2 with worsening degenerative joint disease and disk disease, cervical spine and 3 bilateral knees. AR 12, 129. He was prescribed Vicodin for pain. AR 12, 128. In 4 May 2005, the subjective note indicates Larson had a history of arthritis and 5 neck pain secondary to cervical discogenic disease with bilateral spinal stenosis. 6 AR 12, 133. He was doing well on Neurontin and his neck pain improved, but he 7 continued to have radiating pain to his arms. AR 12, 133. In July 2005, he 8 complained of worsening symptoms. The sensory examination showed tingling in 9 the fingers of both hands. AR 12, 135. In November 2005, RMC suggested 10 11 Larson be referred to a neurologist, but he could not afford it. AR 12, 137. According to Dr. Chae s notes of her first examination on February 14, 12 2006, Larson reported he had a 15-year history of pain, with a history of cervical 13 and lumbar spinal stenosis and chronic left shoulder pain. AR 13, 171. Larson 14 reported he could not walk well, was in agony with minimal attempts to work, 15 and needed to apply for disability. AR 171. Dr. Chae noted reduced range of 16 motion in the left shoulder, 4/5 strength in the left leg, unstable gait, and spasm 17 and tenderness in the cervical and lumbar spine. AR 13, 171. She 18 recommended orthopedic referral. AR 13, 171. 19 The ALJ noted that on February 15, 2006, Dr. Chae completed a 20 Musculoskeletal Report and stated it was difficult to answer some questions 21 because the patient was new to her. AR 138. She diagnosed cervical stenosis, 22 lumbar stenosis and shoulder adhesive capsulitis. AR 138. She noted Larson 23 had a cervical spine fusion with minimal relief. AR 140. She reported Larson had 24 minimal flexion and extension of the neck and decreased leg strength of 4/5. AR 25 138. There was no swelling, effusion or tenderness, and straight leg raising was 26 negative. AR 138. Dr. Chae stated Larson cannot raise arms above horizontal 27 and could stand for less than five minutes. AR 139. She opined he would benefit 28 from a cane for short and long distances. AR 139. 6 1 Dr. Sabourin, an orthopedic surgeon, examined Larson on April 4, 2006 2 and reviewed a report from RMC. AR 13, 141, 144-45. Larson complained of 3 pain in the neck, shoulders, elbows, wrists, hands, upper back, lower back, feet, 4 hips, and knees. His back pain had worsened and he had left hip pain for the 5 past 18 months. He complained of sharp, dull, throbbing, burning pain with 6 standing, sitting, walking, bending or lifting, but he did not use an assistive device 7 to walk. AR 141. Larson was able to sit and stand with normal posture, and sat 8 comfortably during the examination. Gait was normal. Larson had some reduced 9 range of motion in the cervical spine. Range of motion of the lumbar spine was 10 grossly normal with pain at the extremes. Range of motion in the shoulders, 11 elbows, wrists, hands, fingers, ankles and feet was normal and painless. Range 12 of motion in the hips and knees was normal with little in the way of pain. AR 143- 13 44. Motor strength was 5/5 in all extremities. Larson had decreased sensation 14 from hands to the elbows bilaterally and along lateral calf on right leg. AR 144. 15 X-rays taken on the same day showed mild congenital dysplasia of the left hip 16 and a left knee within normal limits. AR 144. Dr. Sabourin diagnosed 17 degenerative disc disease of cervical spine, status post cervical fusion, lumbar 18 strain and sprain, mild congenital dysplasia of the left hip with early osteoarthritis 19 of the left hip, and left knee strain and sprain syndrome. AR 144-45. Dr. 20 Sabourin concluded Larson could lift and carry 20 pounds occasionally and 10 21 pounds frequently. He could stand or walk for 6 hours in an 8 hour workday and 22 climb, stoop, kneel and crouch occasionally. AR 145. The state agency 23 physician agreed with Dr. Sabourin s functional assessment. AR 148-55. 24 The ALJ properly weighed the medical opinions and gave more weight to 25 Dr. Sabourin s opinion because of his specialty in orthopedic surgery. 20 C.F.R. 26 §§ 404.1527(d)(5), 416.927(d)(5); Orn, 495 F.3d at 632 (examining physician s 27 opinion constitutes substantial evidence when supported by independent clinical 28 findings). The ALJ properly considered Dr. Chae s single examination of Larson 7 1 at the time she completed the report. 20 C.F.R. § 404.1527(d)(2)(i) (length of 2 treatment). When, as here, the claimant does not challenge the ALJ s credibility 3 finding, an ALJ may properly discount a treating physician s opinion to the extent 4 it is based on subjective complaints of pain. See Thomas, 278 F.3d at 957. 5 Moreover, rejection of a treating physician s opinion does not by itself trigger a 6 duty to contact the physician for explanation. McLeod v. Astrue, 634 F.3d 516, 7 520 (9th Cir. 2011). The medical records are in the record, and the ALJ made no 8 finding that the evidence was ambiguous or that the record was inadequate to 9 allow for proper evaluation. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 10 2001) ( An ALJ s duty to develop the record further is triggered only when there is 11 ambiguous evidence or when the record is inadequate to allow for proper 12 evaluation of the evidence. ). The ALJ did not err. 13 D. 14 Larson contends that the ALJ erred in finding that Larson did not meet or 15 16 Medical Equivalency to Listed Impairment equal listing 1.04, Disorders of the Spine. JS 18. At step three, the claimant bears the burden of demonstrating his 17 impairments are equivalent to a listed impairment that the Commissioner 18 acknowledges are so severe as to preclude substantial gainful activity. Bowen v. 19 Yuckert, 482 U.S. 137, 141, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). 20 If the impairment meets or equals one of the listed impairments, the claimant is 21 conclusively presumed to be disabled. If the impairment is not one that is 22 conclusively presumed to be disabling, the evaluation proceeds to the fourth 23 step. Id. at 141; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. 24 §§ 404.1520(4)(iii), 416.920(4)(iii). 25 The listings define impairments that would prevent an adult, regardless of 26 his age, education, or work experience, from performing any gainful activity, not 27 just substantial gainful activity. Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 28 885, 107 L. Ed. 2d 967 (1990) (citation omitted and emphasis in original). For a 8 1 claimant to show that his impairment matches a listing, it must meet all of the 2 specified medical criteria. An impairment that manifests only some of those 3 criteria, no matter how severely, does not qualify. Id. at 530 (emphasis in 4 original). 5 To equal a listed impairment, a claimant must establish symptoms, signs 6 and laboratory findings at least equal in severity and duration to the 7 characteristics of a relevant listed impairment, or, if a claimant s impairment is not 8 listed, then to the listed impairment most like the claimant s impairment. 9 Tackett, 180 F.3d at 1099 (emphases in original); 20 C.F.R. § 404.1526. 10 Medical equivalence must be based on medical findings. A generalized 11 assertion of functional problems is not enough to establish disability at step 12 three. Tackett, 180 F.3d at 1100 (citation omitted). 13 An ALJ must evaluate the relevant evidence before concluding that a 14 claimant s impairments do not meet or equal a listed impairment. A boilerplate 15 finding is insufficient to support a conclusion that a claimant s impairment does 16 not do so. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 17 The ALJ reviewed the medical evidence and found Larson does not meet 18 the specific requirements of Listings 1.02, 1.04 or 12.04. AR 11-15. Larson 19 argues his impairments meet or equal Listing 1.04, which requires a disorder of 20 the spine, resulting in compromise of a nerve root or the spinal cord with either: 21 A. Evidence of nerve root compression characterized by neuro-anatomic 22 distribution of pain, limitation of motion of the spine, motor loss (atrophy with 23 associated muscle weakness or muscle weakness) accompanied by sensory or 24 reflex loss and, if there is involvement of the lower back, positive straight-leg 25 raising test (sitting and supine); B. Spinal arachnoiditis, confirmed by an 26 operative note or pathology report of tissue biopsy, or by appropriate medically 27 acceptable imaging, manifested by severe burning or painful dysesthesia, 28 resulting in the need for changes in position or posture more than once every 2 9 1 hours; or C. Lumbar spinal stenosis resulting in pseudoclaudication, 2 established by findings on appropriate medically acceptable imaging, manifested 3 by chronic nonradicular pain and weakness, and resulting in inability to ambulate 4 effectively. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. With respect to Listing 1.04A, the ALJ noted that Larson had two negative 5 6 straight-leg raising tests and no positive tests. AR 13-14, 138, 143. Dr. Sabourin 7 found normal motor strength on both sides and normal range of motion of the 8 lumbar spine, except at the extremes. AR 143, 145. Dr. Chae found some motor 9 loss on the left side in February 2006, without accompanying sensory or reflex 10 loss, but found normal motor strength on both sides in August 2006. AR 138, 11 166. 12 With respect to Listing 1.04C, the ALJ concluded Larson could ambulate 13 effectively. AR 13. The ALJ noted that both Dr. Chae and Dr. Sabourin observed 14 that Larson did not use any assistive devices to walk. AR 13, 139, 141, 142. The 15 ALJ recognized that while Dr. Chae opined that Larson could benefit from the use 16 of a cane, there are no subsequent treatment records showing that Larson used 17 an assistive device or that his gait was unstable. AR 13-14. The ALJ also 18 accepted the functional assessments of Dr. Sabourin and the state agency 19 physician who concluded that Larson could stand and walk for 6 hours in an 8 20 hour workday and climb, stoop, kneel and crouch occasionally. AR 13, 148-55. 21 There was no evidence of spinal arachnoiditis. 22 Larson offers no theory as to how his impairments combined to equal a 23 listed impairment. Lewis, 236 F.3d at 514 (claimant did not satisfy burden to 24 prove that he equaled a listing when he offered no theory, plausible or otherwise, 25 as to how his [impairments] combined to equal a listed impairment . . . [n]or has 26 he pointed to evidence that shows that his combined impairments equal a listed 27 impairment. ). Nor did he make such an argument to the ALJ. See Burch v. 28 Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) ( An ALJ is not required to discuss 10 1 the combined effects of a claimant s impairments or compare them to any listing 2 in an equivalency determination, unless the claimant presents evidence in an 3 effort to establish equivalence. ). 4 Here, the ALJ evaluated and discussed the medical evidence throughout 5 the decision and determined Larson did not meet or equal a listing.4 AR 12-14. 6 The ALJ did not err. 7 E. 8 Larson argues that the ALJ s hypothetical to the VE did not include that Hypothetical Question 9 [Larson s] treating physician has opined that due to [Larson s] unsteady gait, he 10 would benefit from the use of a cane and that [Larson] can stand for less than 5 11 minutes without the assistive device. JS 25. An ALJ may rely on testimony a VE 12 gives in response to a hypothetical that contains all of the limitations that the ALJ 13 found credible and supported by substantial evidence in the record. Bayliss v. 14 Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005). 15 The ALJ found that the evidence did not establish that Larson was unable 16 to stand for more than five minutes without the use of an assistive device. Both 17 Dr. Chae and Dr. Sabourin observed that Larson did not use an assistive device 18 to walk. AR 13, 139, 141-42. Although Dr. Chae noted in February 2006 that 19 Larson s gait was unsteady and he could benefit from a cane, there is no 20 indication in the record that Larson used a cane or that his gait was unsteady 21 after February 2006. AR 13, 139. In April 2006, Dr. Sabourin noted Larson could 22 toe and heel walk within normal limits, showed no evidence of a tilt or list, and 23 24 25 26 27 28 4 See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) ( [i]t is unnecessary to require the Secretary, as a matter of law, to state why a claimant failed to satisfy every different section of the listing of impairments. ). In Gonzalez, the Ninth Circuit found that the ALJ s summary of the medical evidence and the claimant s testimony was sufficient, even though the ALJ did not state what evidence supported the conclusion that the impairments did not meet or equal the listings. Id. at 1200-01. To require the ALJ s to improve their literary skills in this instance would unduly burden the social security disability process. Id. at 1201; see also Lewis, 236 F.3d at 513 (ALJ need not discuss and evaluate evidence that supports his or her conclusion under a specific heading). 11 1 walked with a normal gait. AR 142. The ALJ is not required to include limitations 2 in a hypothetical that are not in his findings. Rollins v. Massanari, 261 F.3d 853, 3 857 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). 4 The ALJ did not err by excluding those limitations in the hypothetical to the VE. 5 IV. 6 ORDER 7 8 9 10 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 11 12 DATED: May 5, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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