Thomas Lee Hope v. Michael J. Astrue, No. 5:2010cv00093 - Document 20 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the Court finds that the Agency's findings are supported by substantial evidence and are free from material legal error. The decision of the Agency is, therefore, affirmed. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 THOMAS LEE HOPE, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-93 PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration ( the Agency ), denying his application for 21 Supplemental Security Income ( SSI ) benefits. 22 Administrative Law Judge ( ALJ ) erred when he: (1) determined that 23 Plaintiff could perform medium work; and (2) found that Plaintiff was 24 not credible. 25 decision that Plaintiff was not disabled within the meaning of the 26 Social Security Act is supported by substantial evidence, it is 27 affirmed. 28 (Joint Stip. at 3-7, 14-16.) He claims that the Because the Agency s 1 II. 2 SUMMARY OF FACTS AND PROCEEDINGS 3 Plaintiff applied for SSI on June 18, 2007, alleging that he had 4 been unable to work since February 2, 2006, because of a breathing 5 impairment. 6 denied his application initially and on reconsideration. 7 Plaintiff then requested and was granted a hearing before an ALJ. 8 49, 53-54.) 9 the hearing. (Administrative Record ( AR ) 76, 102.) The Agency (AR 35-48.) (AR In May 2009, he appeared with counsel and testified at (AR 17-34.) On September 15, 2009, the ALJ issued a 10 decision denying benefits. (AR 7-16.) 11 Appeals Council, which denied review. 12 Plaintiff appealed to the the instant action. (AR 1-5.) 13 III. 14 He then commenced ANALYSIS 15 A. 1. 16 17 The ALJ s Residual Functional Capacity Determination Plaintiff s Grip Strength Plaintiff contends that the ALJ s determination that he could 18 perform medium-level work -which requires that he occasionally lift 19 and carry 50 pounds--was inconsistent with the examining doctor s 20 finding that Plaintiff s grip strength was 40 pounds in his right hand 21 and 30 pounds in his left hand. 22 argues, it seems, that, to be able to lift 50 pounds, a person has to 23 have grip strength equal to or greater than 50 pounds. 24 at 4.) 25 simply mistaken. 26 (Joint Stip. at 4-5.) Plaintiff (Joint Stip. For the following reasons, the Court finds that Plaintiff is Grip strength is not synonymous with lifting ability. See 27 Bauslaugh v. Astrue, 2010 WL 1875800, at *5 (C.D. Cal. May 11, 2010) 28 ( [U]nder the Regulations, the ability to grip and grasp is not 2 1 related to the ability to lift and carry. ). 2 the force grip of a hand and represents the power of squeezing 3 between the thumb and fingers. 4 at *2 n.7 (N.D. Ill. Apr. 14, 1995). Lifting involves picking up a 5 load with the legs, arms, and torso. Plaintiff s attempt to equate 6 the two is rejected, as is his argument that the ALJ erred when he 7 concluded that Plaintiff could lift 50 pounds despite the fact that 8 his grip strength was less than 50 pounds. 9 2. Grip strength measures Chambers v. Shalala, 1995 WL 228965, Dr. To s Failure to Take X-Rays 10 Plaintiff argues that examining doctor Bryan To s opinion was 11 defective because he failed to order x-rays of Plaintiff s joints, 12 despite Plaintiff s complaints of joint pain. 13 The Court finds this claim to be without merit. 14 (Joint Stip. at 5.) Dr. To first examined Plaintiff in August 2007. (AR 175-79.) He 15 found, among other things, that Plaintiff s gait was normal and that 16 he had a full range of motion in his extremities. 17 To concluded that Plaintiff could lift 50 pounds occasionally and 25 18 pounds frequently; stand and walk for six hours in an eight-hour 19 workday; and frequently climb ladders, bend, kneel, stoop, crawl, and 20 crouch. 21 exposure to extreme temperatures, moisture, fumes, and dust. 22 179.) (AR 178.) (AR 176, 177.) Dr. He recommended that Plaintiff be restricted from (AR 23 In October 2007, Dr. To examined Plaintiff again. 24 He noted Plaintiff s complaints of joint pain, swelling, and 25 stiffness, but found that his gait was normal, as were muscle tone and 26 mass, and that there was no evidence of deformity, swelling, or 27 tenderness in any joint. 28 Plaintiff complained of some vague range of motion pain, Dr. To (AR 181, 182, 184.) 3 (AR 181-89.) Although he noted that 1 found that the range of motion was normal. (AR 183, 184.) He also 2 found that Plaintiff s motor function and motor strength were normal. 3 (AR 184.) 4 regarding Plaintiff s functional abilities as he had in August 2007. 5 (AR 184-85.) Based on these findings, he came to the same conclusions 6 Without citing any authority--legal, medical, or otherwise-- 7 Plaintiff argues that Dr. To could not assess Plaintiff s alleged 8 joint pain without taking x-rays. 9 is not remotely persuasive. (Joint Stip. at 5.) This argument The Court is not aware of any evidence - 10 within or without this record--that suggests that doctors cannot 11 assess joint pain without an x-ray and, therefore, are mandated to 12 obtain x-rays in formulating their opinions. 13 whatsoever for this Court to conclude that x-rays were required in 14 this case. 15 16 Thus, there is no basis As such, this claim is rejected. 3. Additional Limitations Overlooked By The ALJ Plaintiff complains that the ALJ failed to consider all of his 17 limitations in determining residual functional capacity. 18 at 3-7.) 19 chronic obstructive pulmonary disease ( COPD ), suffered from chest 20 pain, vomited blood, and, though 5'-7" tall, weighed only 130 to 140 21 pounds. 22 finds this argument without merit. 23 (Joint Stip. He points out, for example, that he had been diagnosed with (Joint Stip. at 4.) For the following reasons, the Court The ALJ concluded that Plaintiff could perform medium work if the 24 air was clean and the temperature not too extreme. 25 conclusion was based on the opinions of Dr. To, the examining 26 physician, and Dr. Yee, the reviewing physician. 27 was entitled to rely on these doctors in formulating his residual 28 functional capacity finding and nothing in those records contradicts 4 (AR 12.) (AR 12-14.) This The ALJ 1 the ALJ s finding. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 2 Cir. 2001) (holding examining physician s opinion based on independent 3 examination constituted substantial evidence to support ALJ s residual 4 functional capacity finding). 5 Dr. To s opinion is uncontradicted. That is especially true where, as here, 6 It is not clear to the Court how the fact that Plaintiff had 7 COPD, had experienced chest pains, had vomited blood, and weighed 130- 8 140 pounds precluded him from working, even if all of these 9 allegations were to be believed. Regarding Plaintiff s COPD, Dr. To 10 was aware of Plaintiff s COPD when he examined him. 11 Dr. To found, however, that Plaintiff s lungs were clear. 12 184.) 13 respiratory system and found it to be normal. 14 Dr. To concluded that Plaintiff s respiratory problems required a 15 slightly restrictive working environment but did not preclude work. 16 (AR 184-85.) 17 (AR 178, 184.) (AR 178, Dr. To performed a pulmonary function test to test Plaintiff s (AR 186.) Ultimately, Thus, it is not as if Dr. To, and consequently, the ALJ, ignored 18 Plaintiff s alleged COPD. 19 doctor tested Plaintiff and concluded that he could still work in the 20 right environment and the ALJ properly relied on this opinion in 21 reaching the same conclusion. 22 Aware of Plaintiff s COPD, the examining A similar analysis applies to Plaintiff s complaints about chest 23 pains and vomiting blood. The record establishes that they were 24 isolated incidents and Plaintiff was not hospitalized for them. 25 Rather, he was released from the emergency room the same day. 26 134, 154.) 27 on the discharge instructions: Based on your exam today, the exact 28 cause of your chest pain is not certain. (AR As to his chest pains, Plaintiff s treating doctor noted 5 Your condition does not seem 1 serious at this time, and your pain does not appear to be coming from 2 your heart. 3 regarding the time he vomited blood are even less compelling. 4 are only three pages long and do not explain what if anything the 5 doctors believed had happened to Plaintiff. 6 they found, they did not think that Plaintiff s condition required 7 additional treatment. 8 incidents would prevent him from working. 9 (AR 152.) The records from his emergency room visit (AR 154-56.) They Whatever Plaintiff has not suggested how these isolated Finally, Plaintiff s claim that the ALJ erred because he did not 10 take into account the fact that Plaintiff was 5'-7" tall and weighed 11 in the 130-140 pound range is specious. 12 weight, on its face, suggests that it precludes employment. 13 Plaintiff explained how it does. 14 too skinny to work. 15 argument is rejected out of hand. Nothing about Plaintiff s Nor has Presumably, he is arguing that he is Assuming that that is what he is claiming, this 16 B. The Vocational Expert s Testimony 17 The ALJ determined that Plaintiff s limitations prevented him 18 from performing his prior work as a painter and called a vocational 19 expert to testify about whether Plaintiff could perform other work. 20 (AR 31-34.) 21 kitchen helper, machine feeder, and hand packager. 22 Plaintiff contends that the ALJ erred when he failed to include all of 23 Plaintiff s limitations, i.e., joint pain, COPD, and learning 24 disability, in the hypothetical question to the vocational expert. 25 (Joint Stip. at 6-7.) 26 She determined that Plaintiff was capable of working as a (AR 15.) Again, the Court disagrees. An ALJ may limit a hypothetical question to only those 27 restrictions that are credible and supported by substantial evidence 28 in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 6 1 2005). 2 To s and Dr. Yee s conclusions about Plaintiff s conditions, which the 3 ALJ incorporated into his residual functional capacity finding. 4 short, the ALJ determined that Plaintiff could perform medium work in 5 an environment free of dust, fumes, and temperature extremes. 6 178, 184, 190-193.) 7 hypothetical question other limitations alleged by Plaintiff that were 8 either not supported by the record or did not impact his ability to 9 work. 10 Here, the ALJ s hypothetical question properly reflected Dr. In (AR The ALJ did not err in failing to include in the Plaintiff argues that the combination of his limitations, in 11 particular the environmental limitations, would significantly reduce 12 the number of jobs identified by the vocational expert. 13 at 6-7.) 14 (Joint Stip. The record does not support this claim. The ALJ asked the vocational expert whether a person who could 15 not read or write and was limited to medium work in an environment 16 without dust, fumes, and extreme temperatures could perform any work. 17 (AR 31.) 18 Occupational Titles ( DOT ), such a person could work as a kitchen 19 helper, hand packager, or machine feeder. 20 vocational expert made clear, in reaching this conclusion, she had, 21 for example, reduced the number of hand packager jobs by 50% to 22 account for Plaintiff s limitations, including his inability to read 23 and write. 24 that the vocational expert took into account Plaintiff s limitations 25 as set forth in the hypothetical. 26 evidence to the contrary. 27 ALJ did not err in relying on her. The expert testified that, consistent with the Dictionary of (AR 33.) (AR 31-32.) As the Thus, a fair reading of the record establishes Plaintiff has not offered any For that reason, the Court finds that the See Johnson v. Shalala, 60 F.3d 28 7 1 1428, 1435 (9th Cir. 1995) (holding ALJ is allowed to rely on 2 vocational expert s testimony even if it contradicts DOT).1 3 C. 4 In his final claim of error, Plaintiff argues that the ALJ 5 failed to identify which portions of Plaintiff s testimony he found 6 incredible and failed to provide clear and convincing reasons for 7 rejecting Plaintiff s complaints. 8 following reasons, the Court disagrees. 9 The ALJ s Credibility Determination (Joint Stip. at 14-16.) For the ALJ s are tasked with judging the credibility of witnesses. 10 Where a claimant has produced objective medical evidence of an 11 impairment which could reasonably be expected to produce the symptoms 12 alleged and there is no evidence of malingering, the ALJ can only 13 reject the claimant s testimony for specific, clear, and convincing 14 reasons. 15 making a credibility determination, the ALJ may take into account 16 ordinary credibility evaluation techniques. 17 Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). In Id. at 1284. At the hearing, Plaintiff alleged that he suffered from chest 18 pain, joint pain, and respiratory problems, which made it impossible 19 for him to stand for more than 20 to 30 minutes at a time or walk for 20 more than 15 to 20 minutes. 21 testimony was not fully credible. (AR 25.) The ALJ found that this (AR 13.) He noted that there was 22 23 1 24 25 26 27 28 Even assuming that the vocational expert had failed to reduce the number of the other jobs to account for Plaintiff s limitations, with regard to hand packager jobs, after reducing them by 50% to account for Plaintiff s limitations, there still remained 50,000 jobs nationally and 3,500 locally. (AR 14.) Clearly, this was more than enough to support the ALJ s finding that there were a significant number of jobs in the economy. See, e.g., Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (holding 64,000 jobs nationally and 2,300 jobs locally is enough). 8 1 no medical evidence to validate Plaintiff s orthopedic complaints and 2 that the record showed that Plaintiff s lungs were relatively normal, 3 with good oxygen flow. 4 discount Plaintiff s testimony, see Osenbrock v. Apfel, 240 F.3d 1157, 5 1165-66 (9th Cir. 2001) (upholding ALJ's credibility determination in 6 part because evaluations revealed little evidence of disabling 7 abnormality), and are supported by the record. 8 To found no evidence of respiratory failure and no evidence of joint 9 deformity or tenderness. (AR 13.) These were legitimate reasons to (AR 177, 183.) Upon examination, Dr. A pulmonary function test 10 revealed that Plaintiff s pulmonary function was normal. 11 Furthermore, when Plaintiff s lung volume was measured by nitrogen 12 washout, the results showed total lung capacity, vital capacity, and 13 residual volume to be within normal limits. 14 (AR 186.) (AR 221.) Additionally, the ALJ found that Plaintiff s treating physicians 15 responded to his condition with only limited and conservative 16 treatment. 17 discounting a claimant s credibility, see, e.g., Meanel v. Apfel, 172 18 F.3d 1111, 1114 (9th Cir. 1999) ( [T]he ALJ properly considered [the 19 treating physician s] failure to prescribe . . . any serious medical 20 treatment for this supposedly excruciating pain ), and is supported by 21 the record. 22 not err in finding that Plaintiff was not credible. (AR 13.) This, too, was a legitimate reason for For these reasons, the Court concludes that the ALJ did 23 IV. 24 CONCLUSION 25 For the reasons set forth above, the Court finds that the 26 Agency s findings are supported by substantial evidence and are free 27 28 9 1 from material legal error. 2 affirmed. 3 IT IS SO ORDERED. 4 The decision of the Agency is, therefore, Dated: May 30, 2011 5 6 7 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\HOPE, T 93\MemoOpinion.wpd 10
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