Shad P. Boyd v. Michael J. Astrue, No. 5:2011cv00493 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Court concludes that the Agency's decision denying benefits is affirmed and the action is dismissed with prejudice. IT IS SO ORDERED. (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SHAD P. BOYD, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 11-493-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Plaintiff Shad Boyd appeals a decision by Defendant Social 19 Security Administration ( the Agency ), denying his application for 20 Disability Insurance benefits ( DIB ). 21 Administrative Law Judge ( ALJ ) erred when he failed to: (1) comply 22 with the Appeals Council s remand orders; and (2) properly consider 23 the workers compensation findings. 24 reasons explained below, the appeal is denied and the action is 25 dismissed with prejudice. 26 II. 27 28 He claims that the (Joint Stip. at 3.) For the SUMMARY OF PROCEEDINGS In September 2005, Plaintiff applied for DIB, alleging that he had been disabled since February 2004, due to degenerative disc 1 disease and loss of a finger. 2 356, 363-65.) 3 reconsideration. 4 before an ALJ. 5 hearing. (AR 24-62.) In March 2009, the ALJ held a supplemental 6 hearing. (AR 63-124.) In June 2009, the ALJ issued a decision, 7 finding that Plaintiff was disabled as of May 16, 2006, but not before 8 then.1 9 (Administrative Record ( AR ) 336-38, The Agency denied the application initially and on Plaintiff then requested and was granted a hearing In January 2009, he appeared with counsel at the (AR 201-11.) Plaintiff appealed to the Appeals Council, which remanded the 10 case to the ALJ for further proceedings. 11 held another hearing on March 22, 2010, and, on May 4, 2010, issued a 12 second decision, again concluding that Plaintiff was not disabled 13 prior to May 16, 2006. 14 Appeals Council, which denied review. 15 the instant action. 16 17 (AR 11-19, 125-91.) III. A. (AR 311-13.) The ALJ then Plaintiff appealed to the (AR 1-3.) He then commenced ANALYSIS The ALJ s Failure to Adhere to the Appeal s Council s Remand 18 Order 19 Following the ALJ s initial decision, Plaintiff appealed to the 20 Appeals Council, arguing that the ALJ had erred. 21 agreed and sent the case back to the ALJ with instructions to, among 22 other things, reconsider the credibility finding and re-evaluate 23 Plaintiff s neck and back ailments. 24 that the ALJ failed to follow the Appeals Council s remand order and (AR 311-13.) The Appeals Council Plaintiff complains 25 26 27 28 1 Plaintiff s insurance expired on December 31, 2004. (AR 349.) In order to qualify for benefits, he was required to establish that he was disabled prior to that date. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1989). 2 1 argues that, as a result, the ALJ s decision should be reversed. 2 the following reasons, this argument is rejected. 3 For The Court has a limited role in reviewing Agency decisions. It 4 is tasked with determining whether the Agency s final decision is 5 supported by substantial evidence and is not based on legal error. 6 See 42 U.S.C. § 405(g); Tyler v. Astrue, 305 F. App x 331, 332 (9th 7 Cir. 2008); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 8 In Tyler, the Ninth Circuit explained in an unpublished decision 9 closely on point: 10 The district court properly declined to evaluate whether the 11 ALJ s second decision satisfied the demands of the Appeals 12 Council s remand . . . . 13 jurisdiction to review the final decisions of administrative 14 agencies. 15 ALJ s second decision, it made that decision final, and 16 declined to find that the ALJ had not complied with its 17 remand instructions. 18 [F]ederal courts only have When the Appeals Council denied review of the Id. at 332. 19 Thus, the issue of whether the ALJ followed the Appeals Council s 20 remand order is not properly before the Court. 21 claim here is rejected. 22 As such, Plaintiff s Plaintiff argues that the ALJ failed to properly evaluate 23 Plaintiff s credibility and failed to make specific findings regarding 24 credibility. 25 claim. 26 (Joint Stip. at 4-8.) The record does not support this In his decision following remand, the ALJ incorporated his 27 earlier decision and supplemented it with additional findings. 28 12.) (AR In the earlier decision, the ALJ found that Plaintiff s ability 3 1 to perform daily activities, like taking care of his children, driving 2 a car, changing his 25-pound one-year-old, washing dishes, doing 3 laundry, and taking out the trash, was inconsistent with his claim 4 that he was severely limited by pain. 5 noted that some of the doctors who examined Plaintiff questioned his 6 sincerity and suggested that he might be exaggerating his claims. 7 208.) 8 expert s observations from the administrative hearing following remand 9 that Plaintiff s complaints were disproportionate to the clinical 10 In addition, the ALJ (AR In the second decision, the ALJ added to this the medical findings. 11 (AR 208.) (AR 16.) These were legitimate reasons for questioning Plaintiff s 12 testimony. 13 2008) (upholding ALJ s finding that Plaintiff was not credible based 14 in part on his ability to perform daily activities, including caring 15 for his ailing sister); Thomas v. Barnhart, 278 F.3d 947, 959-60 (9th 16 Cir. 2002) (affirming ALJ s credibility finding based in part on fact 17 that claimant exaggerated her condition). 18 the record. 19 Plaintiff s testimony regarding his pain prior to May 2006 was not 20 credible will not be disturbed. 21 See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. (AR 163-66, 432, 455.) And they are supported by Thus, the ALJ s finding that Plaintiff also takes exception to the ALJ s findings regarding 22 his neck and back disorders. (Joint Stip. at 15-17.) Here, again, 23 the Court finds that the ALJ provided sufficient support for his 24 findings. 25 medical examiner in his workers compensation case determined on 26 September 30, 2004 -three months before Plaintiff s insurance expired- 27 -that Plaintiff was capable of performing light work, despite his 28 pain. In his 2009 decision, the ALJ pointed out that the agreed (AR 206.) The ALJ emphasized that Plaintiff was able to 4 1 perform numerous daily activities that were inconsistent with 2 incapacitating pain. 3 doctors who examined Plaintiff questioned his sincerity. 4 (AR 208.) The ALJ also noted that some of the (AR 208.) Following remand, the ALJ added to this evidence the testimony of 5 medical expert Arthur Lorber, a board certified orthopedic surgeon. 6 (AR 135-74.) 7 disease and neck pain did not preclude him from performing light work 8 in December 2004. 9 sufficient to support the ALJ s finding that Plaintiff was not According to Dr. Lorber, Plaintiff s degenerative disc (AR 141-43.) This evidence, taken as a whole, is 10 disabled prior to his date last insured. 11 B. 12 Dr. Feiwell s Findings In January 2002, Plaintiff injured his back driving a bus when he 13 drove over a dip in the street and banged down hard on his seat. 14 591.) 15 experiencing pain. 16 duty for about two months and, in April 2002, he returned to work 17 without restrictions. 18 (AR He was able to continue working that day but later began (AR 591.) A week later, he was placed on light (AR 591.) Plaintiff, however, continued experiencing pain and, in September 19 2002, was referred to Dr. John Sasaki, a pain management specialist. 20 (AR 591.) 21 physician. 22 physical therapy. 23 working full time without restriction until May 2003, when Plaintiff 24 reported that he was experiencing persistent, increased pain in his 25 neck and back. 26 and physical therapy. 27 three days as a result. Thereafter, Dr. Sasaki became Plaintiff s treating Dr. Sasaki prescribed epidural injections, Motrin, and (AR 593.) (AR 593-95.) He authorized Plaintiff to continue Plaintiff was treated with an epidural (AR 596.) He was placed on medical leave for (AR 595.) In August 2003, he was excused 28 5 1 from work for three more days and in October 2003 for two more. 2 596.) 3 (AR In October 2003, Plaintiff re-injured his back when he drove his 4 bus into a curb. 5 2003, 18 days after the accident. 6 Plaintiff on medical leave and treated him with epidural injections 7 and nerve blocks. 8 February 2004 and reported near complete relief from his pain 9 following the epidurals and nerve blocks. 10 (AR 597.) He was seen by Dr. Sasaki in November (AR 597.) (AR 597.) Dr. Sasaki did not place Plaintiff returned to Dr. Sasaki in (AR 598.) In March 2004, Plaintiff returned to Dr. Sasaki, complaining that 11 he had recently suffered another injury when he banged down hard on 12 his seat again while driving his bus. 13 that Plaintiff was temporarily totally disabled until April 1, 2004. 14 (AR 584.) 15 and physical therapy. 16 2005, Dr. Sasaki noted that Plaintiff was either off work or 17 temporarily totally disabled. (AR 584.) Dr. Sasaki concluded Plaintiff was treated with epidural injections, medication, (AR 585.) In subsequent visits through October (AR 584-89.) 18 Plaintiff argues that the ALJ, the vocational expert, and the 19 medical expert misunderstood Dr. Sasaki s use of the term temporarily 20 totally disabled in the context of the workers compensation case. 21 (Joint Stip. at 22-24.) 22 to mean that Plaintiff was unable to perform his job as a bus driver 23 but could perform other work. 24 the term actually means that he was incapable of performing any work. 25 (Joint Stip. at 23.) 26 tainted the ALJ s decision. 27 28 He contends that they interpreted this term (Joint Stip. at 23.) He argues that According to Plaintiff, this misunderstanding This argument is rejected. State workers compensation findings are not binding on the Agency in disability cases. Macri v. Chater, 93 F.3d 540, 543-44 (9th 6 1 Cir. 1996); Desrosiers v. Sec y of Health & Human Servs., 846 F.2d 2 573, 576 (9th Cir. 1988). 3 conclusions regarding the ultimate issue of disability. 4 533 F.3d at 1041. 5 vocational expert, and the medical expert misunderstood the meaning of 6 temporarily totally disabled, any error does not warrant reversal. 7 Dr. Sasaki s conclusion that Plaintiff was disabled in workers 8 compensation terms, i.e., he was unable to perform any work, was not 9 binding on the ALJ and, therefore, the ALJ s error in misunderstanding 10 Nor are workers compensation doctors Tomasetti, Assuming without deciding that the ALJ, the that term does not warrant reversal.2 In September 2004, Plaintiff was examined by doctor Earl Feiwell, 11 12 the agreed medical examiner in Plaintiff s workers compensation 13 case. 14 experience slight to moderate pain with activity, increasing to 15 moderate pain with prolonged standing, walking, bending, and lifting, 16 and lead to severe pain with heavier activity. (AR 441-58.) Dr. Feiwell determined that Plaintiff would (AR 456.) Plaintiff 17 2 18 19 20 21 22 23 24 25 26 27 28 This is not to say that the ALJ s treatment of Dr. Sasaki s opinion was flawless. The fact that Dr. Sasaki couched his opinion in workers compensation terms and offered an opinion on the ultimate issue of disability does not mean that his entire opinion should have been disregarded. Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (explaining, even if treating doctor s opinion is not entitled to controlling weight, it must still be considered by ALJ). As the treating physician, Dr. Sasaki was entitled to deference, all things being equal. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In order to discount Dr. Sasaki s opinion, the ALJ was required to provide specific and legitimate reasons supported by substantial evidence in the record for doing so. Id. It does not appear that he did that here. In his 2009 decision, instead of explaining why he was rejecting Dr. Sasaki s opinion, he cryptically explained that he was accepting Dr. Feiwell s opinion because it was reasonable. (AR 207.) The ALJ did not mention Dr. Sasaki in the 2010 decision. Despite these apparent problems with the ALJ s decision, the Court is not inclined to address this issue further because it was not raised by Plaintiff and was not briefed by the parties. 7 1 argues that the ALJ erred in analyzing Dr. Feiwell s findings. (Joint 2 Stip. at 19-21.) 3 moderate pain would cause a marked limitation in activity and severe 4 pain would preclude it. 5 this means that Dr. Feiwell found that Plaintiff was incapable of 6 working in 2004. 7 He points out that, in workers compensation terms, (Joint Stip. at 20.) In Plaintiff s view, The record does not support Plaintiff s argument. In his 2009 decision, the ALJ discussed Dr. Feiwell s findings in 8 detail. (AR 206-07.) Importantly, as the ALJ pointed out, Dr. 9 Feiwell determined in September 2004 that, despite his back and neck 10 ailments and the pain that they caused, Plaintiff had the residual 11 functional capacity to perform light work. 12 2009 decision, the ALJ found that Plaintiff could perform sedentary 13 work prior to May 2006, which is obviously more restrictive than Dr. 14 Feiwell s finding that he could perform light work. 15 his 2010 decision, the ALJ incorporated the 2009 decision and, after 16 discussing additional evidence he considered, including Dr. Lorber s 17 testimony, he concluded that, prior to May 2006, Plaintiff was capable 18 of performing light work. 19 (AR 206, 456.) In his (AR 204-08.) In (AR 15-16.) The fact that the ALJ did not analyze the workers compensation 20 terms used by Dr. Feiwell and discuss how they corresponded to social 21 security terms was not error. 22 Plaintiff was capable of performing light work in September 2004-- 23 three months before Plaintiff s insurance ran out -regardless of any 24 limitations due to pain. 25 could work was in line with Dr. Feiwell s findings and will not be 26 disturbed. Clearly, Dr. Feiwell believed that As such, the ALJ s finding that Plaintiff 27 28 8 1 2 IV. CONCLUSION For these reasons, the Court concludes that the Agency s decision 3 denying benefits is affirmed and the action is dismissed with 4 prejudice. 5 IT IS SO ORDERED. 6 Dated: September 27, 2012. 7 8 9 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\BOYD, 493\memo opinion and order.wpd 9

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