Nehemiah Lewis Jr v. Michael J Astrue, No. 2:2007cv08200 - Document 27 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 NEHEMIAH LEWIS JR., ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) ___________________________________) NO. CV 07-8200-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on December 14, 2007, seeking 21 review of the Commissioner s denial of benefits. The parties filed 22 a consent to proceed before a United States Magistrate Judge on 23 January 11, 2008. 24 25 Plaintiff filed a motion for summary judgment on July 24, 2008. 26 Defendant filed a cross-motion for summary judgment on September 10, 27 2008. 28 argument. The Court has taken both motions under submission without oral See L.R. 7-15; Order, filed December 17, 2007. 1 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 2 3 Plaintiff, a former bus driver, asserted disability based on a 4 variety of impairments, including alleged heart problems and obesity 5 (Administrative Record ( A.R. ) 7-382). 6 ordered remand, an Administrative Law Judge ( ALJ ) examined the 7 medical record and heard testimony from Plaintiff, a medical expert, 8 and a vocational expert. 9 substantial gainful activity on May 15, 2006, at issue before the ALJ Id. Following a previous court- Because Plaintiff returned to 10 was whether Plaintiff was disabled from August 27, 2003 to May 14, 11 2006 (A.R. 290, 356-57). 12 13 The ALJ concluded Plaintiff was not disabled from August 27, 14 2003 to May 14, 2006 (A.R. 290-98). The ALJ found Plaintiff had the 15 severe impairments of status post-aortic valve replacement; mild 16 gout; hypertension; sleep apnea; and obesity, but that these 17 impairments, individually or in combination, did not meet or equal any 18 of the Listings (A.R. 293). 19 residual functional capacity to perform light work except he is able 20 to stand/walk 4 out of 8 hours a day, occasionally balance, climb, 21 kneel, stoop, crouch and crawl, and should not drive or work at 22 unprotected heights (A.R. 293). 23 to perform Plaintiff s past relevant work, but also found, in reliance 24 on the vocational expert s testimony, that there exist significant 25 numbers of other jobs Plaintiff could have performed during the 26 relevant time period (A.R. 296-98). 27 /// 28 /// The ALJ determined Plaintiff had the The ALJ found Plaintiff was unable 2 1 SUMMARY OF PLAINTIFF S CONTENTIONS 2 3 Plaintiff contends: 4 5 1. The ALJ failed to explain sufficiently the ALJ s 6 conclusion Plaintiff did not meet or equal the Listings; 7 8 2. The ALJ failed to consider properly a certain 9 aspect of the medical expert s testimony; and 10 11 3. The ALJ s hypothetical questioning of the 12 vocational expert was incomplete. 13 14 STANDARD OF REVIEW 15 16 Under 42 U.S.C. section 405(g), this Court reviews the 17 Commissioner s decision to determine if: (1) the Commissioner s 18 findings are supported by substantial evidence; and (2) the 19 Commissioner used proper legal standards. 20 763 F.2d 1061, 1064 (9th Cir. 1985). 21 relevant evidence as a reasonable mind might accept as adequate to 22 support a conclusion. 23 (1971) (citation and quotations omitted). See Swanson v. Secretary, Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 24 25 This Court may not affirm [the Administration s] decision 26 simply by isolating a specific quantum of supporting evidence, but 27 must also consider evidence that detracts from [the Administration s] 28 conclusion. Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) 3 1 (citation and quotations omitted). However, the Court cannot disturb 2 findings supported by substantial evidence, even though there may 3 exist other evidence supporting Plaintiff s claim. 4 Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 5 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971). See Torske v. 6 7 The harmless error rule applies to the review of administrative 8 decisions regarding disability. See Curry v. Sullivan, 925 F.2d 1127, 9 1129 (9th Cir. 1991); see also Batson v. Commissioner, 359 F.3d 1190, 10 1196 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th 11 Cir. 2001). 12 13 DISCUSSION 14 15 After consideration of the record as a whole, Defendant s 16 motion is granted and Plaintiff s motion is denied. The 17 Administration s findings are supported by substantial evidence and 18 are free from material legal error. 19 20 Plaintiff has the burden of demonstrating disability under the 21 Listings. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. 22 denied, 517 U.S. 1122 (1996); see Sullivan v. Zebley, 493 U.S. 521, 23 530-31 (1990) (burden is on the claimant to show that his impairment 24 meets all of the specified medical criteria for a listing, or present 25 medical findings equal in severity to all the criteria for the one 26 most similar listed impairment); Johnson v. Barnhart, 390 F.3d 1067, 27 1070 (8th Cir. 2004) ( The burden of proof is on the plaintiff to 28 establish that his or her impairment meets or equals a listing. ). 4 1 Plaintiff utterly has failed to carry this burden. Indeed, 2 Plaintiff s motion fails even to suggest how the medical evidence 3 conceivably might prove Plaintiff met or equaled any particular 4 Listing. 5 6 The ALJ discussed the medical evidence thoroughly (A.R. 293-98; 7 see also A.R. 11-19 (prior administrative decision adopted by 8 reference in present administrative decision)). 9 Plaintiff s argument, the ALJ s Listings discussion sufficed under Contrary to 10 these circumstances. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 11 (9th Cir. 1990) ( It is unnecessary to require the [Administration], 12 as a matter of law, to state why a claimant failed to satisfy every 13 different section of the Listing of Impairments. 14 [Administration s] four page evaluation of the evidence is an 15 adequate statement of the foundations on which the ultimate factual 16 conclusions are based ); see also Young v. Sullivan, 911 F.2d 180, 17 185 n.2 (9th Cir. 1990) ( This case does not involve the refusal to 18 credit a finding made by an alternative diagnostic technique or 19 multiple impairments. 20 this case make more detailed findings regarding equivalence 21 unnecessary ); Key v. Heckler, 754 F.2d 1545, 1549 n.2 (9th Cir. 1985) 22 ( the ALJ examined the medical reports submitted by the various 23 physicians and concluded that the preponderance of the evidence did 24 not establish the existence of the findings necessary to support a 25 showing of disability under the Listing of Impairments ); Linsky v. 26 Astrue, 2008 WL 2128143 *5 (N.D. Cal. May 20, 2008) (rejecting 27 plaintiff s argument regarding sufficiency of ALJ s Listings analysis 28 where Plaintiff failed to meet plaintiff s burden to demonstrate she The Therefore, we find that the circumstances of 5 1 met each and every element described in the Listing or to offer a 2 theory as to how her impairments equaled a Listing). 3 4 Plaintiff s contention regarding the medical expert s testimony 5 also fails. Plaintiff argues the ALJ failed properly to consider 6 testimony from the medical expert purportedly opining that Plaintiff 7 had a sedentary residual functional capacity. 8 not so opine. 9 residual functional capacity was light and could have even been at The medical expert did The medical expert equivocated, saying that Plaintiff s 10 less . . . may have been at the sedentary [level] (A.R. 372). 11 Moreover, to the extent the medical expert may have believed 12 Plaintiff s residual functional capacity deteriorated to a sedentary 13 level, any such deterioration lasted only for a short period of 14 time, according to the medical expert. 15 to carry his burden of demonstrating that any alleged sedentary 16 restriction lasted for twelve continuous months. 17 Heckler, 767 F.2d 586, 589 (9th Cir. 1985), cert. denied, 475 U.S. 18 1025 (1986). 19 expert clearly opined Plaintiff s exertional capacity was at the 20 sedentary level for twelve continuous months, the law would not 21 require the ALJ to detail reasons for an implicit disregard of this 22 aspect of the medical expert s testimony. 23 F.2d 528, 531 (9th Cir. 1986) (ALJ need not explicitly detail reasons 24 for rejecting the contradicted opinions of non-treating physicians); 25 Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (ALJ need 26 not discuss all evidence presented). 27 err in the ALJ s analysis of Plaintiff s residual functional capacity. 28 /// Id. Thus, Plaintiff failed See Krumpelman v. In any event, even assuming, arguendo, the medical 6 See Nyman v. Heckler, 779 Consequently, the ALJ did not 1 Finally, the ALJ did not err in the hypothetical questioning of 2 the vocational expert. Hypothetical questions posed to a vocational 3 expert need not include all conceivable limitations that a favorable 4 interpretation of the record might suggest to exist only those 5 limitations the ALJ finds to exist. 6 427 F.3d 1211, 1217-18 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d 7 853, 857 (9th Cir. 2001); Magallanes v. Bowen, 881 F.2d 747, 756-57 8 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 773-74 (9th Cir. 9 1986). See, e.g., Bayliss v. Barnhart, Here, the hypothetical question posed to the vocational expert 10 included all limitations the ALJ found to exist (A.R. 293, 378-79). 11 No material error occurred. 12 13 CONCLUSION 14 15 For all of the reasons discussed herein, Plaintiff s motion for 16 summary judgment is denied and Defendant s motion for summary judgment 17 is granted. 18 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 20 21 DATED: October 9, 2008. 22 23 24 ________________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 25 26 27 28 7
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