Kusak v. Commissioner Social Security Administration, No. 3:2009cv06369 - Document 24 (D. Or. 2011)

Court Description: OPINION AND ORDER: The decision of the Commissioner is AFFIRMED. Signed on 3/17/11 by Magistrate Judge Dennis J. Hubel. (kb)

Download PDF
Kusak v. Commissioner Social Security Administration Doc. 24 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF OREGON 9 PORTLAND DIVISION 10 11 KELLY KUSAK, an individual, on behalf of LEONARD SPINGOLA, deceased, 12 Plaintiff, 13 v. 14 15 16 COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-6369-HU OPINION AND ORDER 17 18 19 20 21 Kathryn Tassinari Robert Baron HARDER, WELLS, BARON, & MANNING, PC 474 Willamette St.,Suite 200 Eugene, OR 97401 Attorneys for Plaintiff 22 23 24 Adrian Brown U.S. ATTORNEY'S OFFICE District of Oregon 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204 25 26 27 28 William Le SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 701 Fifth Avenue, Suite 2900, M/S 221A Seattle, WA 98104 Attorneys for Defendants Dockets.Justia.com 1 2 HUBEL, Magistrate Judge: Plaintiff Kelley Kusak brings this action on behalf of her 3 deceased father, Leonard Spingola, pursuant to section 405(g) of 4 the Social Security Act (the "Act") to obtain judicial review of 5 a final decision of the Commissioner denying his application for 6 disability insurance benefits ("DIB"). 7 the Commissioner. DISABILITY ANALYSIS 8 9 I affirm the decision of The Social Security Act (the "Act") provides for payment of 10 disability insurance benefits 11 the Social Security program and who suffer from a physical or 12 mental disability. 13 Act, supplemental security income benefits may be available to 14 individuals who are age 65 or over, blind, or disabled, but who do 15 not have insured status under the Act. 16 to people who have contributed to 42 U.S.C. § 423(a)(1). In addition, under the 42 U.S.C. § 1382(a). The claimant must demonstrate an inability to engage in any 17 substantial 18 determinable physical or mental impairment which can be expected to 19 cause death or to last for a continuous period of at least twelve 20 months. 21 individual will be determined to be disabled only if his physical 22 or mental impairments are of such severity that he is not only 23 unable to do his previous work, but cannot, considering his age, 24 education, kind of 25 substantial gainful work which exists in the national economy. 42 26 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). 27 28 The gainful 42 U.S.C. and work Commissioner activity §§ by reason 423(d)(1)(A) experience, has and engage established of medically 1382c(a)(3)(A). in a any any other five-step An sequential evaluation process for determining if a person is eligible for OPINION AND ORDER 2 1 either DIB or SSI due to disability. The claimant has the burden 2 of proof on the first four steps. 3 746 (9th Cir. 2007), cert. 4 20 C.F.R. §§ 404.1520 and 5 determines whether the claimant is engaged in "substantial gainful 6 activity." If the claimant is engaged in such activity, disability 7 benefits are denied. 8 two and determines whether the claimant has a medically severe 9 impairment or combination of impairments. Parra v. Astrue, 481 F.3d 742, denied, 128 416.920. S. First, Ct. the 1068 (2008); Commissioner Otherwise, the Commissioner proceeds to step A severe impairment is 10 one "which significantly limits [the claimant s] physical or mental 11 ability to do basic work activities." 20 C.F.R. §§ 404.1520(c) and 12 416.920(c). 13 combination of impairments, disability benefits are denied. If the claimant does not have a severe impairment or 14 If the impairment is severe, the Commissioner proceeds to the 15 third step to determine whether the impairment is equivalent to one 16 of 17 acknowledges are so severe as to preclude substantial gainful 18 activity. 19 impairment meets or equals one of the listed impairments, the 20 claimant 21 impairment is not one that is presumed to be disabling, the 22 Commissioner proceeds to the fourth step to determine whether the 23 impairment prevents the claimant from performing work which the 24 claimant performed in the past. 25 work which he or she performed in the past, a finding of "not 26 disabled" is made and disability benefits are denied. 27 §§ 404.1520(e) and 416.920(e). 28 a number of listed impairments that the Commissioner 20 C.F.R. §§ 404.1520(d) and 416.920(d). is conclusively presumed to be disabled. If the If the If the claimant is able to perform 20 C.F.R. If the claimant is unable to perform work performed in the OPINION AND ORDER 3 1 past, the Commissioner proceeds to the fifth and final step to 2 determine if the claimant can perform other work in the national 3 economy in light of his or her age, education, and work experience. 4 The burden shifts to the Commissioner to show what gainful work 5 activities are within the claimant s capabilities. Parra, 481 F.3d 6 at 746. The claimant is entitled to disability benefits only if he 7 or she is not able to perform other work. 8 and 416.920(f). 20 C.F.R. §§ 404.1520(f) STANDARD OF REVIEW 9 10 The court must affirm a denial of benefits if the denial is 11 supported by substantial evidence and is based on correct legal 12 standards. 13 2005). Substantial evidence is more than a "mere scintilla" of the 14 evidence but less than a preponderance. Id. "[T]he commissioner s 15 findings are upheld if supported by inferences reasonably drawn 16 from the record, and if evidence exists to support more than one 17 rational 18 decision." Batson v. Barnhart, 359 F.3d 1190, 1193 (9th Cir. 2003) 19 (internal citations omitted). 20 is not whether the Commissioner reasonably could have reached a 21 different outcome, but whether the Commissioner's final decision is 22 supported by substantial evidence. 23 F.2d 747, 750 (9th Cir. 1989). Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. interpretation, we must defer to the Commissioner s Thus, the question before the court See Magallanes v. Bowen, 881 THE ALJ S DECISION 24 25 The Administrative Law Judge ("ALJ") found that Spingola 26 suffered from the severe impairments of alcoholism and lumbar 27 degenerative disc disease. 28 had mild restrictions in activities of daily living and moderate OPINION AND ORDER 4 Further, the ALJ found that Spingola 1 difficulties 2 residual functional capacity to perform light duty work, except 3 that during an eight hour day, he could stand or walk no more than 4 four hours. 5 climbed 6 consumption. He was restricted to occasional stooping, bending, or 7 crouching. 8 to three step tasks. 9 concluded that Spignola could have performed work as an assembler 10 in maintaining concentration. Spingola had the He should not have had exposure to hazards or have ladders, ropes, or scaffolds He was able to frequently crawl. due to his alcohol He was limited to one Based on the above limitations, the ALJ of small products, a cashier II, or an electronics assembler. 11 FACTS 12 Spignola was deceased at the time of the ALJ's opinion. 13 died at 14 alcoholism. 15 as auto mechanic and an automobile repair service estimator. 16 112. 17 he claimed he had been disabled since April 2, 1999, and later he 18 claimed disability since February 1, 2004, but after his death and 19 the substitution of his daughter Ms. Kusak as the claimant in this 20 case, she amended the alleged onset date to May 18, 2006. 21 163, 183. Spingola's last date insured was June 30, 2007. Tr. 12. 22 On March 26, 2007, Spignola alleged he was disabled due to "acute 23 cronic [sic] 24 [pain]." 25 the age of Tr. 174. 54 on April of cirrhosis and During his life, Spignola had been employed He was a high school graduate. back 12, 2008, He pain with Tr. 174, 291. acute and cronic Tr. At one point [sic] Tr. 11, shoulder Tr. 183, 191. Prior to his death, Spingola typically woke up between 6:30 26 and 7:00 a.m., showered, and made himself breakfast. Tr. 300. 27 would then watch TV until roughly 1 pm and then take a nap. 28 209. He Tr. He made his own dinner, watched more television, and then OPINION AND ORDER 5 1 went to bed between 10 p.m. and midnight. 2 laundry weekly, wiped down surfaces in his house, and did other 3 basic cleaning. Tr. 203, 211. 4 to do so alone. Tr. 204. 5 light shopping for groceries. 6 cigarettes per day for 18 years prior to his death, Tr. 291, 300, 7 and typically ate just one meal per day. 8 9 Tr. 209, 300. He did He went outside daily, and was able Spingola could drive and was able to do Tr. 204. He smoked one pack of Tr. 253. Spignola alleged he had "a history of chronic back pain," although he could not trace it to any particular accident or event. 10 Tr. 299. He had back surgery at some point in the 1980s, and again 11 in the 1990s, to address issues with the L5-S1 and L4-L5 vertebrae. 12 Id. 13 has "chronic back pain all day" that "is localized to his lumbar 14 back." 15 problem [was] back pain." Despite the surgeries, Spingola continued to report that he Id. In Spingola's view, "his only current work related Tr. 291. 16 In June 2007, Spingola related to examining psychologist Dr. 17 McConochie that because of his pain, "he can be on his feet and 18 busy for about 15-30 minutes if there is no heavy lifting. He 19 often needs a five-minute rest to do continuous activities." Tr. 20 293. 21 walking for more than five minutes is sometimes very tough." 22 291. 23 Komanapalli that "[h]e spends a quarter of his day on his feet." 24 Tr. 300. 25 Dr. During the same interview, Spingola said, "Standing and Tr. The same month Spingola told an examining internist, Dr. Komanapalli assessed that "the number of hours the 26 claimant could be expected to stand and walk in an eight-hour work 27 day is between two and four hours." 28 physician, Dr. Neal Berner, opined, based on his review of the OPINION AND ORDER 6 Tr. 303. A non-examining 1 medical records, that Spingola could stand or walk "about 6 hours 2 in an 8-hour workday." 3 with Dr. Komanapalli's assessment because a "2-4 hour stand walk is 4 excessive restriction [sic] based on [claimant's] own report of 5 being on feet 1/4 of each day." 6 complaints, Spingola did not take any prescription medications for 7 his pain. 8 medical treatment, Spingola preferred to treat his pain by drinking 9 alcohol. 10 Tr. 291. Tr. 307. He explained that he disagreed Tr. 312. In spite of his Instead of taking medication or seeking other Tr. 345. On January 7, 2007, Spignola was hospitalized due to an 11 alcohol withdrawal seizure. Tr. 252. 12 with in 13 unresponsive to stimuli, and his upper extremities displaying 14 chaotic activities. 15 told doctors at Sacred Heart that Spingola had been drinking 10-12 16 glasses of rum per day for the previous 8 years. 17 that period there "ha[d] not been any attempts at cessation of his 18 alcohol consumption." 19 to having an average of one alcoholic drink per day, but denie[d] 20 that he ha[d] abused alcohol in the past." 21 2007, Spingola contradicted his June 7, 2007 statement when he told 22 Dr. Komanapalli that "he still drinks 3-4 days a week and up to 23 three beers at a time." 24 reports, on December 17, 2007, Spingola said he "drinks anywhere 25 between 4-8 drinks a day, beer, hard liquor," in order to treat his 26 back pain. 27 28 his eyes rolled back Id. his Kusak had found her father head, his teeth clenched, During admission to the hospital, Kusak Id. Tr. 252. During On June 7, 2007, Spingola "admit[ted] Tr. 299. Tr. 291. On June 14, Continuing his inconsistent Tr. 345. According to the emergency room's Dr. Geoffrey Gordon, Spignola related, "He does get quite shaky if he does not drink, OPINION AND ORDER 7 1 but he rarely goes a day without drinking." 2 2007, the day of his neuropsychological exam, he did not drink and 3 the psychologist, Dr. McConochie, observed that Spingola "does have 4 a bilateral hand tremor, suggestive of neurological problems." Tr. 5 291. 6 Komanapalli during a full physical examination on June 14, 2007. 7 Dr. Komanapalli commented extensively on Spingola's ability to use 8 his hands: 9 10 11 12 13 14 15 16 Tr. 255. On June 7, Spingola's hand tremors, however, were not noted by Dr. Claimant is able to grip and hold objects securely to the palm by the last three digits. Claimant is also able to grasp and manipulate both large and small objects with the first three digits. Claimant's thumb functions with normal opposition. There is no evidence of myotonia or grip release. There is no evidence of localized tenderness, erythema, or effusion. There is no evidence of diminution of function with repetition. There is no evidence of spasticity or ataxia. Sensation to touch and pin in all five fingers is normal. Joint position, vibration sense, graphesthesia and stereognosis are normal. Subjective and objective findings are consistent. Functional limitations are based on both subjective and objective findings. Hand and finger anatomy is normal; there are no effusions, deformities, areas of erythema, swelling, or gouty tophi. 17 Tr. 302-03. Dr. Komanapalli concluded, "There are no manipulative 18 limitations." A non-examining consulting physician, Dr. Neal 19 Berner, noted the discrepancy in shorthand, "Clmt has bilat hand 20 tremor during neuro psych but not during physical CE, OV's or hspt 21 reports." Tr. 311. 22 Disability Determination Services referred Spingola to 23 psychologist William McConochie, Ph.D. for a neuropsychological 24 exam which took place on June 7, 2007. Tr. 290. The appointment 25 was to be cancelled if Spingola arrived inebriated, but the 26 examiner opined that was Spingola was sober on arrival. Tr. 290. 27 During the interview, Spingola said "his only current work related 28 OPINION AND ORDER 8 1 problem is back pain, which bothers him especially if he is 2 physically active." 3 "thought content was logical," 4 interview and testing process Spingola "had good attention and 5 concentration." 6 had no impairment in the areas of sustained concentration and 7 attention, persistence, or in his ability to engage in appropriate 8 social interaction. 9 had a mild to moderate impairment in his ability to understand and Tr. 291. Tr. 292. McConochie opined that Spingola's Tr. 291, and that during the Dr. McConochie indicated that Spingola Tr. 295. Dr. McConochie opined that Spingola 10 remember instructions. Tr. 295. 11 diagnosed Spingola with "Dementia due to chronic alcohol abuse, by 12 medical record." 13 psychological limitation to work activity is borderline level 14 intellectual functioning as an aspect of apparent dementia. 15 Prognosis for improvement in this condition is poor, he does not 16 acknowledge alcohol abuse, which appears to be the underlying 17 origin of this deficiency . . . He is still drinking." Tr. 295. Nevertheless, Dr. McConochie He concluded that Spingola's "primary Tr. 295-96. DISCUSSION 18 19 Kusak argues that the ALJ erred by (1) failing to include 20 dementia and bilateral hand tremors as "severe" impairments at step 21 two; (2) failing to give full credit to the 22 McConochie, the examining psychologist; (3) failing to give full 23 credit to Dr. Komanapalli, the examining physician; (4) failing to 24 find disability by application of the Medical-Vocational rules (5) 25 failing to credit Kusak's lay testimony about her father; and (6) 26 failing to meet her burden of proving that Spingola retained the 27 ability to perform other work in the national economy. 28 I address each assignment of error in turn. OPINION AND ORDER 9 opinion of Dr. 1 I. Severe Impairments 2 An impairment is severe "when alone or in combination with 3 another medically determinable physical or mental impairment(s), it 4 significantly limits an individual's physical or mental ability to 5 do basic work activities." 6 claimant lacks a medically severe impairment or combination of 7 impairments only when his conclusion is clearly established by 8 medical evidence." 9 2005) (quotations omitted). SSR 02-01p. "[A]n ALJ may find that a Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. "An impairment can be considered as 10 not severe [at step two] only if it is a slight abnormality which 11 has such a minimal effect on the individual that it would not be 12 expected to interfere with the individual's ability to work, 13 irrespective of age, education, or work experience." 14 Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). SSR 85-28; 15 Kusak argues that the ALJ erred by failing to find that 16 dementia and hand tremors were severe impairments. For the reasons 17 set forth below, I disagree. 18 A. Hand Tremors 19 "The ALJ is responsible for determining credibility, resolving 20 conflicts in medical testimony, and resolving ambiguities." Edlund 21 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 22 reference to hand tremors in the record of this case comes from the 23 observations of a psychologist, Dr. McConochie. 24 clarified that Spingola's shakiness was transient, explaining, "He 25 does get quite shaky if he does not drink, but he rarely goes a day 26 without drinking." 27 drink was, in McConochie's estimation, the morning he appeared for 28 his neuropsychological evaluation. The sole Medical doctors Tr. 255. One of the rare days Spingola did not OPINION AND ORDER 10 McConochie commented, "He did 1 not appear inebriated. He had no alcohol on his breath." Tr. 290. 2 The ALJ acknowledged all the relevant evidence in the record on the 3 topic of hand tremors, and relied on the assessment done by Dr. 4 Komanapalli during Spingola's full physical exam. 5 did an extensive analysis of Spingola's ability to use his hands, 6 concluding that he had "no manipulative limitations." 7 Although a nurse practitioner who saw Spingola March 19, 2008, less 8 than a month before his death, noticed that he was "tremulous when 9 raising his arms, or changing his position on the exam table," Tr. Dr. Komanapalli Tr. 303. 10 344, her statement does not refer to Spingola's hands. Rather, it 11 appears that she was referring to his whole body. 12 Spingola's condition on March 19, 2008, is not dispositive because 13 he must have been disabled by June 30, 2007, his date last insured. 14 In addition, nothing in the record indicates that Spingola In any event, 15 himself ever complained of any difficulty using his hands. 16 contrary, his view was that "his only current work related problem 17 [was] back pain." 18 do laundry, shop, and clean all activities requiring use of his 19 hands. The ALJ took into account the above evidence, and concluded 20 that there was "no objective basis for imposing any restriction on 21 the use of Mr. Spingola's hands." 22 medical evidence clearly establishes that hand tremors were not a 23 severe impairment, and more particularly, not a restriction on his 24 ability to work. Tr. 291. On the Moreover, Spingola was able to drive, Tr. 21. I agree. I find the 25 B. 26 Kusak argues that the ALJ erred by not including dementia as severe Dementia 27 a impairment 28 neuropsychological assessment, Dr. McConochie diagnosed Spingola OPINION AND ORDER 11 at step two, as well. During his 1 with "[d]ementia due to chronic alcohol abuse, by medical record." 2 Tr. 295. 3 Spingola's "thought content was logical," 4 "had good attention and concentration." 5 indicated that, with regard to Spingola's ability to engage in work 6 related activity, he had no impairment in the areas of sustained 7 concentration and attention, persistence, or in his ability to 8 engage in appropriate social interaction. 9 that Spingola only had a mild to moderate impairment in his ability 10 Despite his diagnosis, Dr. McConochie opined that Tr. 291, and that he Tr. 292. Dr. McConochie Dr. McConochie opined to understand and remember instructions. Tr. 295. 11 The ALJ considered Dr. McConochie's opinion together with the 12 evidence of record, which showed that Spingola drove himself to the 13 store several times per week, cleaned the surfaces in his house on 14 a weekly basis, shopped for groceries, cooked simple meals, played 15 with his daughter's dog, did light chores, and occasionally went 16 fishing. 17 difficulties, and that he regularly interacted with his daughter, 18 his son-in-law, and a neighbor. 19 his 20 instructions, but noted that the record indicated Spingola "lived 21 basically independently." 22 opinion 23 Lahman. 24 chronic alcohol abuse, but found only a moderate limitation in his 25 ability 26 instructions. 27 "can remember simple routine instructions," and "can consistently 28 perform simple repetitive routine tasks." Tr. 15-16. daughter of a The ALJ noted that Spingola had no social reported that The ALJ noted that Spingola and he Tr. 19. non-examining had difficulty remembering The ALJ also considered the psychiatric consultant, Dr. Frank Dr. Lahman agreed that Spingola had dementia due to to understand, Tr. 328. OPINION AND ORDER 12 remember, and carry out detailed It was Dr. Lahman's opinion that Spingola Tr. 330. The ALJ gave 1 great weight to Dr. Lahman's opinion because 2 consistent with Mr. Spingola's self-reported level of functioning 3 as revealed in the medical records." 4 between Spingola's self-reported level of functioning and Dr. 5 McConochie's testimony, the ALJ gave only partial credit to Dr. 6 McConochie's opinion. Tr. 20. it "seem[ed] Due to the tension 7 For all of the above reasons, the ALJ found that Spingola was 8 capable of one to three step tasks, and dementia was not a severe 9 impairment. I agree with the ALJ's finding because the evidence in 10 the record, discussed above, establishes that Spingola's dementia 11 did not significantly limit his mental ability to do basic work 12 activities. 13 effect on him that it would not be expected to interfere with his 14 ability to work. 15 Put otherwise, Spingola's dementia had such a minimal Although the ALJ did not find dementia to be a severe 16 impairment, she included a limitation of one to three step tasks in 17 Spingola's residual functional capacity. Even if the ALJ had erred 18 in her assessment, "any alleged error at step two was harmless 19 because step two was decided in [the claimant]'s favor with regard 20 to other ailments" and the ALJ considered the symptoms at issue, 21 dementia in this case, in formulating the RFC. 22 Astrue, 364 Fed. Appx. 346, 1 (9th Cir. 2010). 23 II. 24 Mondragon v. Examining Physician Testimony The weight given to the opinion of a physician depends on 25 whether the physician 26 physician, or a nonexamining physician. 27 the opinion of a treating physician because the person has a 28 greater opportunity OPINION AND ORDER 13 to is a know treating and physician, an examining More weight is given to observe the patient as an 1 individual. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 2 a treating or examining physician s opinion is not contradicted by 3 another physician, the ALJ may only reject it for clear and 4 convincing reasons. Id. (treating physician); Widmark v. Barnhart, 5 454 F.3d 1063, 1067 (9th Cir. 2006) (examining physician). Even if 6 it is contradicted by another physician, the ALJ may not reject the 7 opinion without providing specific and legitimate reasons supported 8 by substantial evidence in the record. 9 Widmark, 454 F.3d at 1066. The If Orn, 495 F.3d at 632; opinion of a nonexamining 10 physician, by itself, is insufficient to constitute substantial 11 evidence 12 physician. 13 nonexamining, testifying medical advisor may serve as substantial 14 evidence when they are supported by and are consistent with other 15 evidence in the record. 16 Administration, 169 F.3d 595, 600 (9th Cir. 1999). to reject the Widmark, opinion 454 F.3d of at a treating 1066 n.2. or examining Opinions of a Morgan v. Commissioner of Social Security 17 A. 18 As noted in the previous section, the examining psychologist, 19 Dr. McConochie, was the sole person who opined that Spingola had an 20 issue with hand tremors. 21 who performed an extensive analysis of Spingola's hands, however, 22 concluded that Spingola had no manipulative limitations. Dr. 23 Komanapalli's own 24 description 25 described above. 26 Hand Tremors opinion of his Dr. Komanapalli, an examining physician was consistent limitations, and his with daily Spingola's activities as I find that the ALJ gave specific and legitimate reasons to 27 reject the opinion of Dr. McConochie with respect to hand tremors. 28 The ALJ did not err in this regard. OPINION AND ORDER 14 1 B. Dementia 2 Although both the examining psychologist, Dr. McConochie, and 3 the nonexamining psychiatric consultant, Dr. Lahman, concluded that 4 Spingola had dementia as a result of alcohol abuse, the two 5 differed somewhat their opinions about what Spingola could do. Dr. 6 McConochie opined that Spingola had a mild to moderate impairment 7 in his ability to understand and remember instructions. Dr. Lahman 8 opined that Spingola could remember simple routine instructions and 9 consistently perform simple repetitive routine tasks. The ALJ 10 found that Dr. Lahman's opinion was more consistent with the 11 evidence of daily activities present in the record, and thus gave 12 great 13 McConochie's opinion. weight find to his that opinion Dr. and partial consistent 16 evidence to assign only partial weight to Dr. McConochie's opinion 17 regarding dementia. 18 regard. 19 C. Sit/Stand Limitation 20 Dr. Komanapalli record, gave the together Dr. 15 the taken to I in opinion, weight 14 evidence Lahman's only ALJ with substantial The ALJ, therefore, did not err in this opined that "[t]he number of hours the 21 claimant could be expected to stand and walk in an eight-hour work 22 day is between two and four hours." 23 with Dr. Komanapalli's opinion based on Dr. Komanapalli's own 24 medical records. 25 walk "about 6 hours in an 8-hour workday." 26 explained that he only partially accepted Dr. Komanapalli's opinion 27 because a "2-4 hour stand walk is excessive restriction based on 28 [claimant's] own report of being on his feet 1/4 of each day." Tr. 303. Dr. Berner disagreed Dr. Berner opined that Spingola could stand or OPINION AND ORDER 15 Tr. 307. Dr. Berner Tr. 1 312. It is ambiguous whether Spingola (and thus Dr. Berner) meant 2 one quarter of a 24-hour day or one quarter of his waking hours. 3 Assuming Spingola 4 dictates that the ALJ's 4 hour stand/walk limitation is very close 5 to Spingola's own reports about his ability to stand and walk. referred to his waking hours, simple math1 6 More importantly, as the defendant points out, the limitations 7 imposed by Spingola's alleged back pain are not significantly 8 backed up by the record. 9 seldom sought treatment for his back pain. In the record before the court, Spingola Many of the records are 10 completely absent of any mention of back pain. See e.g. Tr. 249 11 (discharge diagnoses after a two-week stay in the hospital include 12 no mention of back problems). 13 he did for his back pain was "drink alcohol." 14 seek medical treatment for back pain is "powerful evidence" that 15 the claimant does not have significant pain. 16 400 F.3d 676, 681 (9th Cir. 2005). By his own admission, the only thing Tr. 345. Failure to Burch v. Barnhart, 17 Nevertheless, the ALJ put in the residual functional capacity 18 a limitation that Spingola "should not have stood/walked for more 19 than four out of eight hours." 20 reasonable in light of the relative absence of medical records 21 indicating Spingola's alleged back problems or limitations on Tr. 16-17. This limitation is 22 23 24 25 26 27 28 1 Spingola reported to Dr. Komanapalli that "[h]e sleeps from 10-12 at night to 6:30 or 7 in the morning." Tr. 300. If Spingola woke at 6:30 a.m. and went to bed between 10 p.m. and midnight, then his day was 15.5 to 17.5 hours long, and one quarter of his day would be 3.875-4.375 hours. If he woke up at 7 a.m. and went to bed at 10 p.m., then his day was 15 hours long, and one quarter of his day would be 3.75 hours. Thus, depending on how early and late Spingola rose and slept on a given day, according to his testimony, he spent between 3.75 and 4.375 hours on his feet. OPINION AND ORDER 16 1 standing and walking such problems might have caused. 2 explained that Dr. Berner did not agree with Dr. Komanapalli's 3 assessment because it conflicted with Spingola's statement about 4 being on his feet for a quarter of the day. 5 she "assign[s] great weight to Dr. Berner's opinion, as it is well- 6 explained and thorough" and "assign[s] only partial weight to Dr. 7 Komanapalli's opinion." 8 "the treating source records do not mention back pain or associated 9 limitations in the record." Tr. 20. The ALJ The ALJ concluded that The ALJ further explained that Tr. 20. 10 I find that the opinion of Dr. Berner, taken together with the 11 evidence in the record regarding how much time Spingola spent on 12 his feet and the absence of medical records about back pain and 13 associated limitations, constitutes substantial evidence sufficient 14 to accord only partial weight to the opinion of Dr. Komanapalli. 15 The ALJ did not err in assessing a four hour stand/walk limitation 16 in Spingola's RFC. 17 According to Kusak, the ALJ's alleged error concerning the 18 amount of time Spingola could stand or walk means that he should 19 have been limited to sedentary work and thus deemed disabled under 20 the medical-vocational rules. 21 work when he or she can stand or walk no more than two hours in an 22 eight hour work day. See SSR 83-10. 23 merit. 24 Komanapalli, does anyone indicate that Spingola was only able to 25 stand and walk for two hours per day. 26 that Spingola should be limited to standing and walking for two to 27 four hours per day, not just two hours. 28 above, the ALJ did not err in giving Dr. Komanapalli's opinion only A claimant is limited to sedentary This argument is without Nowhere in the record, including in the opinion of Dr. OPINION AND ORDER 17 Komanapalli's opinion was Moreover, as discussed 1 partial weight, by limiting Spingola to four hours or less on his 2 feet. Thus, the argument that Spingola should have been limited to 3 sedentary work fails. 4 III. Lay Witness Testimony 5 Lay testimony about a claimant s symptoms is competent 6 evidence which the ALJ must take into account unless she gives 7 reasons for the rejection that are germane to each witness. 8 v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). 9 A medical diagnosis, however, is beyond the competence of lay Stout 10 witnesses. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 11 A legitimate reason to discount lay testimony is that it conflicts 12 with medical evidence. 13 2001). Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 14 [W]here the ALJ s error lies in a failure to properly discuss 15 competent lay testimony favorable to the claimant, a reviewing 16 court cannot consider the error harmless unless it can confidently 17 conclude 18 testimony, 19 determination. 20 F.3d 1050, 1056 (9th Cir. 2006). that no could reasonable have ALJ, reached when a fully crediting different the disability Stout v. Commissioner, Social Sec. Admin., 454 21 Kusak alleges the ALJ erred by rejecting her testimony with 22 regard to the extent of Spingola's back pain, his ability to stand 23 and walk, and his mental functioning. For example, Kusak testified 24 that Spingola "was in incredible amounts of pain always," Tr. 98, 25 that "the smallest amount of activity would hurt his back," Tr. 26 101, that he struggled to walk up his own front porch, and that "he 27 had a hard time walking to the mailbox and back." 28 further testified that after Spingola's hospitalization in January OPINION AND ORDER 18 Tr. 102. Kusak 1 2007 for alcohol withdrawal, that "he just wasn't the same. He 2 couldn't think straight. 3 Tr. 101. 4 on January 7, 2007 that Spingola "drinks approximately 10 to 12 5 glasses of rum from the time he wakes up until he goes to bed. 6 This has gone on for the last 8 years." 7 ALJ at the August 19, 2009 hearing that Spingola "would have 8 probably four or five drinks a day." A lot of times he wouldn't make sense." Relating to Spingola's alcohol abuse, Kusak told doctors Tr. 252. Yet she told the Tr. 99. 9 The ALJ found that Kusak's testimony about her father's 10 limitations was "descriptive of her perceptions; however, it does 11 not provide sufficient support to alter the residual functional 12 capacity. 13 consistent with the medical and other evidence of record." Tr. 19. 14 The ALJ pointed out that Dr. Miriam Gage noted in December 2007 15 that after going home from the January 2007 hospital stay, Spingola 16 "has been relatively intact mentally." 17 despite Kusak's report that Spingola had a hard time walking to his 18 mailbox and back, Spingola reported on April 17, 2007, a little 19 over 2 months before his last date insured, he could shop for his 20 own groceries, Tr. 212, and on June 14, 2007, 16 days before his 21 last date insured, that he could climb a flight of stairs. 22 300. 23 The The ALJ behavior fully observed discussed by Ms. Kusak's Kusak Tr. 345. is not fully In addition, testimony, and Tr. found 24 discrepancies with the medical and other evidence of record. These 25 discrepancies and inconsistencies with the evidence mentioned in 26 this and prior sections constitute germane reasons to discount 27 Kusak's testimony and to conclude that Kusak is not entirely 28 credible. Accordingly, the ALJ did not err in giving only partial OPINION AND ORDER 19 1 consideration to Kusak's testimony. 2 IV. Ability to Perform Other Work 3 Kusak's final assignment of error alleges if the ALJ had (1) 4 properly credited the testimony of Dr. McConochie, (2) properly 5 credited Kusak's testimony, or (3) properly informed the vocational 6 expert of all of Spingola's impairments, then the VE would have 7 been unable to find that Spingola was capable of doing work other 8 than his previous jobs in the national economy. 9 above, Kusak's contentions regarding her own testimony and Dr. I have rejected, 10 McConochie's testimony, and will not repeat my reasoning here. 11 Kusak's assignment of error concerning the limitations imparted to 12 the vocational expert warrants a brief discussion. 13 According to Kusak, the ALJ failed to include in the 14 hypothetical presented to the vocational expert that Spingola had 15 moderate limitations in concentration, persistence or pace, had a 16 limited attention span, and tended to forget spoken instructions. 17 The 18 limitations as they appeared in the record. 19 McConochie only characterized Spingola's impairment as somewhere 20 between "mild" and "moderate." 21 consideration of the alleged limitations, she formulated a residual 22 functional capacity that included a limitation "to one to three 23 step tasks equivalent to specific vocational preparation (SVP) 2 24 entry level work as defined in the Dictionary of Occupational 25 Titles." Tr. 17. Similarly, in her hypothetical to the vocational 26 expert, the ALJ asked the expert to assume an individual who "is 27 limited to steps no more complex than one, two, three steps or the 28 equivalent of SVP 2, entry level employment in the Dictionary of ALJ however, noted OPINION AND ORDER 20 in her report all of those alleged In addition, even Dr. See Tr. 295. Based on the ALJ's 1 2 Occupational Titles." Tr. 113. Hypothetical questions posed to a vocational expert must 3 specify all of the limitations and restrictions of the claimant. 4 Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001). 5 hypothetical that includes a residual functional capacity which 6 incorporates the limitations and restrictions of the claimant, 7 however, is sufficient. 8 of Spingola's mental limitations and restrictions into the residual 9 functional capacity's three step limitation, and this limitation 10 was posed in the hypothetical to the vocational expert. Therefore, 11 the ALJ did not err in this regard. See id. Here, the ALJ incorporated all CONCLUSION 12 13 A Accordingly, based 14 the record, the decision of the Commissioner is affirmed. 15 on IT IS SO ORDERED. 16 Dated this 17 day of March, 2011. 17 18 /s/ Dennis J. Hubel 19 Dennis James Hubel United States Magistrate Judge 20 21 22 23 24 25 26 27 28 OPINION AND ORDER 21

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.