Jerry Chris Baker v. Michael J. Astrue, No. 5:2011cv00268 - Document 25 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky (ib)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JERRY CHRIS BAKER, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 11-00268 RZ MEMORANDUM OPINION AND ORDER 17 This matter was here once before, and the Administrative Law Judge s 18 decision on remand forms the basis for the first of four errors that Plaintiff Jerry Chris 19 Baker asserts in this action. In the prior action, the Court directed that, at Step 2 of the 20 sequential evaluation, the Administrative Law Judge take as given that Plaintiff suffers 21 from a severe mental impairment. 22 Administrative Law Judge has not followed the Court s order. [AR AR 433-34] Plaintiff asserts that the 23 An administrative agency is obligated to follow an order of the Court upon 24 remand, and failure to do so itself constitutes legal error, which justifies further remand. 25 Sullivan v. Hudson, 490 U.S. 877, 885-86 (1989). On remand, the Administrative Law 26 Judge found that Plaintiff suffered from the severe impairment of a mood disorder [AR 27 414]. He did not specifically find that Plaintiff s depression was severe, although in the 28 body of his decision he referenced this Court s prior order, and considered Plaintiff s 1 depression, along with Plaintiff s other impairments, in reaching his decision. [AR 417-18] 2 The Administrative Law Judge did as this Court ordered, and found that Plaintiff suffered 3 a mental impairment at Step 2. In addition, he considered the impact of all mental 4 impairments, whether severe or not. This was sufficient compliance with the Court s prior 5 mandate. 6 Plaintiff also complains that the Administrative Law Judge s decision is not 7 backed by substantial evidence. It is difficult to understand Plaintiff s argument, because 8 much of it simply seems to be a disagreement with how the Administrative Law Judge 9 interpreted the evidence. Interpretation of the evidence, of course, is his province, not the 10 Court s, even where differing interpretations might be reasonable. Mayes v. Massanari, 11 276 F.3d 453, 459 (9th Cir. 2001). However, it does also appear that Plaintiff complains 12 of the Administrative Law Judge s failure to find that Plaintiff has a severe impairment 13 arising from his carpal tunnel syndrome. 14 In the first decision, the same Administrative Law Judge found that Plaintiff 15 had a severe impairment arising from carpal tunnel syndrome. [AR 58] Two pieces of 16 evidence were cited, a nerve conduction study [AR 59] and an examination by 17 Dr. Simpkins [AR 279-80]. Those two pieces of evidence also were cited in the second 18 decision [AR 415]. However, the second time around the Administrative Law Judge also 19 cited a consultative examination that took place after the first decision. [Id.] In that 20 consultative examination, the doctor made no mention of carpal tunnel syndrome, and the 21 Administrative Law Judge relied on the absence of any mention, as well as the absence of 22 findings in recent treatment records, to support his conclusion that the carpal tunnel 23 syndrome was not a severe impairment. [AR 416] 24 This is a sustainable conclusion, because the evidence was thin to begin with. 25 While the nerve conduction study did find an abnormality that was consistent with 26 entrapment of the median nerves at the right wrist, the physician conducting the study also 27 stated that the study needed to be correlated clinically. [AR 204] Dr. Simpkins did find, 28 on clinical examination, bilateral carpal tunnel syndrome, but he described it as mild, and -2- 1 more pronounced on the right than the left. [AR 280] His statement contained no other 2 description of the syndrome or its impact on Petitioner. By the time of the consultative 3 examination after the first decision, however, as noted there was no mention of it at all, and 4 no findings in recent records. 5 Administrative Law Judge was within his authority in interpreting the new evidence as 6 swinging the determination the other way, and concluding that there was not a severe 7 impairment relating to carpal tunnel syndrome. With the fairly weak evidence to begin with, the 8 Plaintiff s next argument is that the Administrative Law Judge wrongly found 9 him to be not entirely credible. An administrative law judge is not required to believe a 10 claimant, and may discount the claimant s allegations of pain, using ordinary techniques 11 of evaluating a witness, if he gives specific and legitimate reasons for doing so. Smolen 12 v. Chater, 80 F.3d 1273 (9th Cir. 1996). The Administrative Law Judge here noted that, 13 despite the claims of physical pain, Plaintiff was not taking pain medications. [AR 419] 14 This was in contrast to the fact that Plaintiff was taking psychotropic medications, and the 15 inference to be drawn was that Plaintiff did not hesitate to take medications when he 16 needed them. 17 The Administrative Law Judge also found that the extent of Plaintiff s alleged 18 pain was inconsistent with certain activities he engaged in, and also that his belief that he 19 could not even bend down to pick up cans was certainly inconsistent with his efforts to lift 20 a sofa; the Administrative Law Judge acknowledged that Plaintiff stated that he was laid 21 up for two days after the sofa-lifting incident, but focused instead on the fact that a person 22 who professed to suffer incapacitating back pain would not even try. [AR 419] It may 23 have been reasonable to reach other conclusions from this evidence, but these conclusions 24 that the Administrative Law Judge reached were themselves reasonable, and were specific, 25 and that is all that is required. Rollins v. Massanari, 261 F. 3d 853, 857 (9th Cir. 2001). 26 Plaintiff s final argument is that the Administrative Law Judge erred in finding 27 that there were other jobs in the economy that Plaintiff could perform. Plaintiff faults the 28 Administrative Law Judge for only identifying the number of jobs that existed in the -3- 1 national economy, not the regional economy. But the governing statute only provides that 2 there must be work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A). This 3 means that there must be work in significant numbers either in the region where the 4 Plaintiff lives, or in several regions in the country. 20 C.F.R. § 404.1566(b). Hence, 5 stating the number of qualifying jobs in the national economy satisfied the statutory 6 requirement. As a back-up argument, Plaintiff asserts that the number of regional jobs to 7 which the vocational expert testified was too low, but the numbers, especially when added 8 together, have been held sufficient by the courts. Barker v. Secretary of Health and Human 9 Services, 882 F.2d 1474, 1478-79 (9th Cir. 1989). 10 11 The Court finds none of Plaintiff s arguments sufficient to justify a further reversal and remand. Accordingly, the decision of the Commissioner is affirmed. 12 13 DATED: November 29, 2011 14 15 16 17 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 -4-

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