Suzanne Getchel v. Michael J Astrue, No. 8:2008cv01278 - Document 14 (C.D. Cal. 2009)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle: IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (See document for further details.) (pcl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 SUZANNE GETCHEL, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. SACV 08-1278 (CW) DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned magistrate judge. 21 review of the denial of disability benefits. 22 judgment should be granted in favor of defendant, affirming the 23 Commissioner s decision. 24 25 I. Plaintiff seeks The court finds that BACKGROUND Plaintiff Suzanne Getchel was born on March 24, 1947, and was 26 sixty-one years old at the time of her administrative hearing. 27 [Administrative Record ( AR ) 6, 9.] 28 education and past relevant work experience as a teacher s aide. [AR 1 She has two years of college 1 9.] Plaintiff alleges disability on the basis of severe headaches and 2 multiple work-related injuries to her neck, shoulders, arms, back and 3 legs. [AR 45.] 4 II. 5 PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on November 12, 2008, and filed 6 on November 19, 2008. On July 13, 2009, defendant filed an answer and 7 plaintiff s Administrative Record ( AR ). 8 parties filed their Joint Stipulation ( JS ) identifying matters not 9 in dispute, issues in dispute, the positions of the parties, and the 10 relief sought by each party. 11 On June 26, 2009, the submission without oral argument. 12 III. This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS 13 Plaintiff applied for a period of disability and disability 14 insurance benefits ( DIB ) under Title II of the Social Security Act 15 on April 5, 2007, alleging disability since December 22, 2005. [AR 30, 16 107.] 17 reconsideration, plaintiff requested an administrative hearing, which 18 was held on July 30, 2008, before Administrative Law Judge ( ALJ ) 19 Kevin M. McCormick. [AR 6-24.] 20 testimony was taken from plaintiff and vocational expert Aida 21 Worthington. [AR 7.] 22 August 21, 2008. 23 on September 19, 2008, the ALJ s decision became the Commissioner s 24 final decision. [AR 1-3.] 25 26 After the application was denied initially and on Plaintiff appeared with counsel, and The ALJ denied benefits in a decision dated [AR 30-37.] IV. When the Appeals Council denied review STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 27 Commissioner s decision to deny benefits. 28 ALJ s) findings and decision should be upheld if they are free of 2 The Commissioner s (or 1 legal error and supported by substantial evidence. 2 court determines that a finding is based on legal error or is not 3 supported by substantial evidence in the record, the court may reject 4 the finding and set aside the decision to deny benefits. 5 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 6 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 7 F.3d 1157, 1162 (9th Cir. 8 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 9 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 10 11 However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). Substantial evidence is more than a scintilla, but less than a 12 preponderance. Reddick, 157 F.3d at 720. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, a court must review the administrative record as a whole, 16 weighing both the evidence that supports and the evidence that 17 detracts from the Commissioner s conclusion. 18 can reasonably support either affirming or reversing, the reviewing 19 court may not substitute its judgment for that of the Commissioner. 20 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports V. 21 Id. If the evidence DISCUSSION 22 A. THE FIVE-STEP EVALUATION 23 To be eligible for disability benefits a claimant must 24 demonstrate a medically determinable impairment which prevents the 25 claimant from engaging in substantial gainful activity and which is 26 expected to result in death or to last for a continuous period of at 27 least twelve months. 28 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 3 1 Disability claims are evaluated using a five-step test: 2 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 3 4 5 6 7 8 9 10 11 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 12 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 13 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 14 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 15 not disabled at any step, there is no need to complete further 16 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 17 Claimants have the burden of proof at steps one through four, 18 subject to the presumption that Social Security hearings are non19 adversarial, and to the Commissioner s affirmative duty to assist 20 claimants in fully developing the record even if they are represented 21 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 22 1288. If this burden is met, a prima facie case of disability is 23 made, and the burden shifts to the Commissioner (at step five) to 24 prove that, considering residual functional capacity ( RFC )1, age, 25 26 1 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that plaintiff had not engaged in substantial 6 gainful activity since her alleged disability onset date (step one); 7 that plaintiff had severe impairments, namely mild cervical 8 spondylosis, a cervical strain, left C5-6 radiculopathy, diffuse 9 osteopenia of the spine, a sprain of both shoulders, a contusion and 10 sprain of the right knee, lateral epicondylitis of both elbows, 11 moderate degenerative disc disease of the thoracic spine, moderate 12 facet degeneration of the lumbar spine, a thorocolumbar strain and 13 moderate degenerative changes of the acromioclaviular joint of both 14 shoulders (step two); and that plaintiff did not have an impairment or 15 combination of impairments that met or equaled a listing (step 16 three). [AR 32.] 17 work which permits lifting and/or carrying 30 pounds occasionally and 18 15 pounds frequently; standing and walking for six hours out of an 19 eight hour workday in two hour intervals with no limitation on 20 sitting; occasional bending and stooping; with the left upper 21 extremity, occasionally push and pull, frequent use of hand controls 22 and tools, frequent simple gripping and frequent distal fine 23 coordinate movements with the left hand and fingers; with the right 24 upper extremity the claimant can frequently push and pull, frequent The ALJ found that Plaintiff had an RFC for light 25 26 27 28 work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 operation of hand controls, avoid using heavy power tools, frequent 2 simple gripping and frequent distal fine coordinated movements with 3 the right hand and fingers. [AR 32-33.] 4 testified that a person with Plaintiff s RFC could perform Plaintiff s 5 past relevant work as a teachers aide, as it is generally performed in 6 the national economy (step four). [AR 36.] 7 found not disabled as defined by the Social Security Act. [Id.] The vocational expert Accordingly, Plaintiff was 8 C. 9 The parties Joint Stipulation sets out the following disputed 10 issues: 11 1. ISSUES IN DISPUTE examining physician, Dr. Robert A. Moore; 12 13 2. Whether the ALJ posed a complete hypothetical question to the vocational expert based on Dr. Moore s opinion; and 14 15 Whether the ALJ properly considered the opinion of the 3. Whether the ALJ properly determined that Plaintiff could return to her past relevant work. 16 17 [JS 2-3.] 18 D. 19 In September 2007, Plaintiff underwent a Neurological Evaluation DR. MOORE S OPINION 20 conducted by Dr. Robert A. Moore. [AR 222-26.] Plaintiff reported a 21 ten year history of symptomatology, including pain in her neck, left 22 shoulder and lower back. 23 records included a September 2006 MRI scan revealing 2-3 mm 24 discogenic lesions at C3 through C7, an MRI scan of the left shoulder 25 revealing supraspinatus tendinopathy on the left and a November 2006 26 EMG revealing some abnormalities in the left brachioradialis and 27 biceps. [AR 223.] 28 Fosamax, Soma, atenolol and an estrogen supplement. [Id.] Dr. Moore s review of Plaintiff s medical Plaintiff s medications included fluoxetine, 6 Upon physical examination, Dr. Moore noted, among other things, 1 2 that Plaintiff had tenderness in the left lower paracervical and 3 trapezius muscles and minor tenderness over the lower paralumbar 4 muscles without associated paralumbar muscle spasm. [AR 223-24.] 5 neurological examination, Dr. Moore noted, among other things, that 6 Plaintiff was alert and oriented to person, place and time, that her 7 speech was normal, and that she had a normal and spontaneous gait. [AR 8 224.] 9 spondylosis and tendinitis of the left shoulder and right elbow. [AR 10 11 Upon Dr. Moore diagnosed Plaintiff with mild cervical and lumbar 225.] For purposes of Plaintiff s functional capacity, Dr. Moore stated 12 that in his opinion, Plaintiff could stand and walk for six hours out 13 of an eight-hour workday, sit in an unrestricted manner, occasionally 14 bend and stoop and operate foot controls. [AR 225.] However, with 15 Plaintiff s left arm, because of her neck and left shoulder, the 16 claimant can only occasionally push and pull. 17 difficulty operating hand controls and using tools. 18 frequent simple gripping and frequent distal fine coordinated 19 movements with the left hand and fingers. 20 arm, because of her tendinitis of the right elbow, the claimant can 21 frequently push and pull. 22 hand controls. 23 perform occasional to frequent simple gripping and frequent distal 24 fine coordinated movements with the right hand and fingers. [Id.] 25 Dr. Moore s final determination was that Plaintiff could 26 intermittently left and carry 30 pounds and more frequently lift and 27 carry 15 pounds. [AR 226.] 28 She would have slight She can perform As for Plaintiff s right She would have slight difficulty operating She should avoid using heavy power tools. She can The ALJ found that Dr. Moore s opinion is persuasive and is 7 1 given the greatest weight in determining the claimant s residual 2 functional capacity because it was based on a physical examination 3 and a review of the medical records and was corroborated by other 4 medical evidence. [AR 35.] 5 asked the vocational expert to refer to Dr. Moore s opinion and asked 6 whether a person with the limitations set out by Dr. Moore, including 7 with the right upper extremity and perform occasional to frequent 8 can perform up to frequent simple gripping and frequent distal fine 9 coordinative movements with the right hands and fingers, could At the administrative hearing, the ALJ 10 perform Plaintiff s past relevant work as it is either customarily or 11 actually performed. [AR 17-18.] 12 such a person could perform Plaintiff s past relevant work as a 13 teacher s aide as it was customarily, but not actually, performed. [AR 14 18.] 15 Plaintiff s limitations should be able to perform that job using the 16 right upper extremity [as] necessary. [AR 19.] 17 vocational evidence, the ALJ found plaintiff not disabled. [AR 36.] 18 Plaintiff asserts that the ALJ s decision was not supported by The vocational expert responded that The vocational expert also testified that a person with Based on this 19 substantial evidence because the ALJ disregarded Dr. Moore s opinion 20 that Plaintiff was limited to occasional to frequent simple gripping 21 with the right hand [JS 3 (Claim One)], failed to incorporate this 22 limitation into the hypothetical question asked to the vocational 23 expert [JS 8 (Claim Two)], and failed to account for the inconsistency 24 between Plaintiff s limitation and the description of the teacher s 25 aide job in the Dictionary of Occupational Titles ( DOT ), which calls 26 for frequent handling [JS 11 (Claim Three)]. 27 has merit. 28 None of these claims The record shows that the ALJ did credit all of Dr. Moore s 8 1 limitations and accounted for them in the hypothetical question asked 2 to the vocational expert. [AR 18.] 3 limitation provided by Dr. Moore did not correspond exactly to the 4 wording of the ALJ s RFC finding or to the hypothetical question asked 5 of the vocational expert, the question did clearly account for a 6 limitation to occasional to frequent simple gripping with the right 7 hand and fingers; moreover, the ALJ requested that the vocational 8 expert refer directly to Dr. Moore s opinion prior to answering the 9 question. [Id.] Although the description of the Accordingly, the record indicates that the vocational 10 expert was made aware of all of the limitations described by Dr. Moore 11 before giving her testimony. 12 Plaintiff further argues that the ALJ disregarded the 13 inconsistency between Dr. Moore s limitation of Plaintiff to 14 occasional to frequent simple gripping of the right hand with the 15 description of the teacher s aide position in the Dictionary of 16 Occupational Titles (DOT 249.367-074: Teacher Aide II), which states 17 that the job requires frequent handling. [JS 11.] 18 vocational expert explained that Plaintiff should be able to perform 19 that job as it is generally performed using the right upper extremity 20 as necessary. 21 limited to less than frequent handling of all types with her right 22 hand, given that Dr. Moore stated she could perform frequent distal 23 fine coordinated movements with the right hand and fingers. 24 does the record indicate that Plaintiff has a significant limitation 25 in her ability to perform handling with her left hand nor that her 26 limitations derive primarily from her hands. 27 circumstances, this claim does not warrant reversal of the 28 Commissioner s decision. However, the Moreover, the record does not suggest that Plaintiff is 9 Under these Neither VI. 1 ORDERS 2 Accordingly, IT IS ORDERED that: 3 1. The decision of the Commissioner is AFFIRMED. 4 2. This action is DISMISSED WITH PREJUDICE. 5 3. The Clerk of the Court shall serve this Decision and Order 6 and the Judgment herein on all parties or counsel. 7 8 9 10 DATED: August 6, 2009 ___________/S/___________________ CARLA M. WOEHRLE United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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