Richard P. Hanrahan v. Michael J. Astrue, No. 2:2009cv03148 - Document 25 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing the case with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 RICHARD P. HANRAHAN, 12 Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-3148-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER 17 18 19 PROCEEDINGS On May 28, 2009, Richard P. Hanrahan ( Plaintiff or Claimant or Hanrahan ) filed 20 a complaint seeking review of the decision by the Commissioner of Social Security 21 ( Commissioner ) denying Plaintiff s application for both Social Security disability insurance 22 benefits and Supplemental Social Security income. The Commissioner filed an Answer on 23 July 27, 2009. On November 23, 2009, the parties filed a Joint Stipulation ( JS ). 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the 25 Magistrate Judge. The matter is now ready for decision. After reviewing the pleadings, 26 transcripts, and administrative record ( AR ), the Court concludes that the Commissioner s 27 decision should be affirmed and the case dismissed with prejudice. 28 BACKGROUND 1 Plaintiff is a 47 year old male who was determined to have the medically 2 3 determinable severe impairment of mild carpal tunnel syndrome. (AR 14.) Plaintiff has not 4 engaged in substantial gainful activity since March 11, 2005, the alleged onset date. (AR 5 14.) 6 Plaintiff s claim was denied initially on December 14, 2006, and on reconsideration on 7 April 13, 2007. (AR 12.) He filed a timely request for hearing, which was held before 8 Administrative Law Judge ( ALJ ) Eric Benham on October 9, 2007, in Palmdale, California. 9 (AR 12.) Claimant appeared and testified. (AR 12.) Vocational expert Randi Langford- 10 11 Hetrick also testified. (AR 12.) The ALJ issued an unfavorable decision on May 27, 2008. (AR 12-19.) The ALJ 12 determined that Plaintiff had the residual functional capacity ( RFC )1 to perform light work, 13 except that he can no more than occasionally perform postural changes, has no right eye 14 vision, and can no more than frequently handle or finger with his right hand. (AR 15.) The 15 ALJ found that Plaintiff could not perform his prior work in air-conditioning and heating (AR 16 17) but could perform other jobs in the national economy, and therefore was not disabled 17 within the meaning of the Social Security Act. (AR 17-18.) The ALJ also determined that 18 Claimant has a limited education but is able to communicate in English. (AR 17.) DISPUTED ISSUES 19 20 21 22 As reflected in the Joint Stipulation, the sole disputed issue that Plaintiff is raising as a ground for reversal is as follows: 1. Whether the ALJ properly considered the presence of a manipulative impairment. 23 24 25 26 1 27 28 Residual functional capacity is what one can still do despite [his or her] limitations and represents an assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 2 STANDARD OF REVIEW 1 2 Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine 3 whether the ALJ s findings are supported by substantial evidence and whether the proper 4 legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). 5 Substantial evidence means more than a mere scintilla but less than a preponderance. 6 Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 7 U.S. 389, 401 (1971)). 8 9 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401 (internal quotations and 10 citations omitted). This Court must review the record as a whole and consider adverse as 11 well as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 12 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ s 13 decision must be upheld. Morgan v. Comm r, 169 F.3d 595, 599 (9th Cir. 1999). However, 14 a reviewing court must consider the entire record as a whole and may not affirm simply by 15 isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 (quoting 16 Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 17 625, 630 (9th Cir. 2007). 18 19 SEQUENTIAL EVALUATION The Social Security Act defines disability as the inability to engage in any substantial 20 gainful activity by reason of any medically determinable physical or mental impairment 21 which can be expected to result in death or . . . can be expected to last for a continuous 22 period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The 23 Commissioner has established a five-step sequential process to determine whether a 24 claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. 25 The first step is to determine whether the claimant is presently engaging in 26 substantially gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the 27 claimant is engaging in substantially gainful activity, disability benefits will be denied. 28 3 1 Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the 2 claimant has a severe impairment or combination of impairments. Parra, 481 F.3d at 746. 3 Third, the ALJ must determine whether the impairment is listed, or equivalent to an 4 impairment listed, in Appendix I of the regulations. Id. If the impediment meets or equals 5 one of the listed impairments, the claimant is presumptively disabled. Bowen, 482 U.S. at 6 141. Fourth, the ALJ must determine whether the impairment prevents the claimant from 7 doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before 8 making the step four determination, the ALJ first must determine the claimant s RFC. 20 9 C.F.R. § 416.920(e). The RFC must consider all of the claimant s impairments, including 10 those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling 11 ( SSR ) 96-8p. If the claimant cannot perform his or her past relevant work, the ALJ 12 proceeds to the fifth step and must determine whether the impairment prevents the claimant 13 from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 14 (9th Cir. 2000). 15 The claimant bears the burden of proving steps one through four, consistent with the 16 general rule that at all times the burden is on the claimant to establish his or her entitlement 17 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 18 claimant, the burden shifts to the Commissioner to show that the claimant may perform 19 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). If the 20 Commissioner cannot meet this burden, then the claimant is disabled and entitled to 21 benefits. Id. 22 In this case, the ALJ concluded at step five of the sequential process that Plaintiff can 23 perform other jobs in the national economy (AR 17-18) and therefore is not disabled within 24 the meaning of the Social Security Act. (AR 18.) 25 26 27 DISCUSSION At the ALJ hearing, Plaintiff alleged right eye blindness, right and left elbow pain, carpal tunnel syndrome, back pain, neck pain, shoulder pain, and depression. (AR 15-17.) 28 4 1 The ALJ determined that Plaintiff s carpal tunnel syndrome was his only medically 2 determinable severe impairment.2 (AR 14.) 3 Before this Court, Plaintiff alleges a disabling manipulative impairment. He 4 challenges the ALJ s rejection of the opinion of consulting orthopedist Brian Ahangar, M.D., 5 who concluded that Plaintiff had the following manipulative limitations: The Claimant should 6 limit reaching, handling, feeling, grasping, and fingering to only occasionally on the left and 7 less than occasionally on the right. (AR 185.) On the basis of these limitations, Plaintiff 8 alleges an inability to use his hands for significant activity. (JS 13.) 9 The ALJ s rejection of Dr. Ahangar s testimony, however, is supported by substantial 10 evidence and free of legal error. The ALJ also properly discounted Plaintiff s credibility. The 11 ALJ met the Commissioner s burden at step five of the sequential process to establish that 12 jobs exist in the national economy that Plaintiff can perform. 13 A. The ALJ Properly Rejected The Opinion Of The Examining Physician 14 On November 5, 2006, consulting examiner Dr. Ahangar conducted a comprehensive 15 orthopedic evaluation at the request of the state agency acting on behalf of the 16 Commissioner. (AR 181; JS 5.) Dr. Ahangar s diagnoses included right eye blindness, 17 bilateral elbow pain but with normal range of motion and strength and right carpal tunnel 18 syndrome with weakness of grip. (AR 184.) His functional assessment was that the hours 19 Claimant could be expected to sit, stand or walk in an eight hour day was unrestricted. (AR 20 185.) He could lift and carry 10 pounds frequently and 20 pounds occasionally on the left 21 side and 10 pounds frequently and occasionally on the right side. (AR 185.) Dr. Ahangar 22 found no postural limitations but did find manipulative limitations on both left and right as to 23 reaching, handling, feeling, grasping, and fingering. (AR 185.) 24 25 26 27 28 2 Plaintiff s treating physician Dr. Rafael Gomez examined Plaintiff s eye injury in 2006. (AR 208-213.) He opined that Claimant could perform medium exertion work notwithstanding the loss of right eye vision. (AR 16.) Plaintiff does not claim that the loss of right eye vision renders him unable to work. 5 1 The ALJ gave little weight to Dr. Ahangar s assessment of Plaintiff s manipulative 2 limitations. An ALJ may reject an examining physician s uncontradicted medical opinion 3 only for clear and convincing reasons. Carmickle v. Comm r, Social Sec. Admin., 533 F.3d 4 1155, 1164 (9th Cir. 2008). Where such an opinion is contradicted, however, it may be 5 rejected for specific and legitimate reasons that are supported by substantial evidence in the 6 record. Id. (internal quotations and citation omitted). In this case, Dr. Ahangar s 7 manipulative assessment was contradicted by other medical evidence and the ALJ properly 8 rejected Dr. Ahangar s opinion with specific and legitimate reasons supported by substantial 9 evidence. 10 Claimant s treating physician Dr. Gonzalez opined that Plaintiff could perform 11 medium exertion work. (AR 16, 211-12.) Plaintiff contends that Dr. Gonzalez s examination 12 only concerned Claimant s eye, but Dr. Gonzalez completed a functional capacity 13 assessment that clearly was not limited to the eye. (AR 211-12.) In any event, on 14 November 8, 2006, three days after Dr. Ahangar s manipulative limitations assessment, Dr. 15 Ravikumar conducted a nerve conduction or electromyography ( EMG ) test in response to 16 Plaintiff s complaints of tingling and numbness in the right hand. (AR 179-180.) The result 17 was a normal EMG and an impression of [e]arly, mild, right carpal tunnel syndrome. (AR 18 179-180.) The referring orthopedist Dr. Sirajullah accepted these findings, observing that 19 the EMG was ok and diagnosing mild carpal tunnel syndrome. (AR 153.) 20 The ALJ also appears to have derived his light work RFC from nonexamining 21 physician Dr. Chiang. (AR 16, 150, 156-61.) Plaintiff questions whether Dr. Chiang s 22 opinion can be substantial evidence, but a non-examining physician s opinion can be 23 considered when not contradicted by all other evidence, based on independent clinical 24 findings, and supported by other evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 25 1041 (9th Cir. 1995). The ALJ could not and did not rely solely on Dr. Chiang s opinion to 26 reject Dr. Ahangar s manipulative assessment. Morgan, 169 F.3d at 600; Lester v. Chater, 27 81 F.3d 821, 831 (9th Cir. 1995). Dr. Chiang s opinion is consistent with the independent 28 6 1 clinical EMG study, the findings and diagnoses of Dr. Ravikumar and Dr. Sirajullah, more 2 favorable to Plaintiff than Dr. Gonzalez assessment and is consistent with other evidence 3 cited by the ALJ. 4 Plaintiff, for example, returned to medium or heavy work for three or four months in 5 2007. (AR 16.) Plaintiff asserts there is no evidence that the work was medium to heavy, 6 but the record testimony of both the Claimant and vocational expert fully supports this 7 finding. (AR 408-409.) The ALJ also cited Plaintiff s failure to pursue treatment. (AR 16.) 8 Plaintiff mildly disputes the point, but at the hearing, when asked what treatment he had 9 received for his back, knees, shoulders and hands, he replied Nothing. (AR 402.) 10 11 The ALJ rejected Dr. Ahangar s manipulative assessment for specific and legitimate reasons supported by substantial evidence. 12 B. 13 The ALJ considered and properly discounted Plaintiff s subjective pain complaints in 14 15 The ALJ Properly Discounted Plaintiff s Credibility determining his RFC. Substantial evidence supports this determination. The test for deciding whether to accept a claimant s subjective symptom testimony 16 turns on whether the claimant produces medical evidence of an impairment that reasonably 17 could be expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 18 F.2d 341, 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 19 1998); Smolen v. Chater, 80 F.3d 1273, 1281-82 esp. n.2 (9th Cir. 1996). The 20 Commissioner may not discredit a claimant s testimony on the severity of symptoms merely 21 because they are unsupported by objective medical evidence. Reddick, 157 F.3d at 722; 22 Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant s pain testimony not credible, 23 the ALJ must specifically make findings which support this conclusion. Bunnell, 947 F.2d 24 at 345. The ALJ must set forth findings sufficiently specific to permit the court to conclude 25 that the ALJ did not arbitrarily discredit claimant s testimony. Thomas v. Barnhart, 278 F.3d 26 949, 958 (9th Cir. 2002); see also Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 27 2001); Bunnell, 947 F.2d at 345-46. Unless there is evidence of malingering, the ALJ can 28 7 1 reject the claimant s testimony about the severity of a claimant s symptoms only by offering 2 specific, clear and convincing reasons for doing so. Smolen, 80 F.3d at 1283-84; see also 3 Reddick, 157 F.3d at 722. The ALJ must identify what testimony is not credible and what 4 evidence discredits the testimony. Reddick, 157 F.3d at 722; Smolen, 80 F.3d at 1284. 5 In this case, the ALJ concluded that Plaintiff s medically determinable impairments 6 reasonably could be expected to produce the alleged pain but the symptoms are not 7 credible to the extent they are inconsistent with the assessed RFC. (AR 15.) There was no 8 assertion that Plaintiff was malingering. Thus, the ALJ was required to offer specific, clear 9 and convincing reasons for discounting Plaintiff s subjective pain symptoms. 10 The ALJ did not find the Claimant s complaints sufficiently credible to justify any 11 further limitations than those established by the objective medical record. (AR 16.) Even 12 though not determinative of the severity of pain, the medical evidence is nonetheless a 13 relevant factor in determining the severity of a claimant s pain. Rollins, 261 F.3d at 857; 14 Smolen, 80 F.3d at 1285. Here, the medical evidence from Dr. Gonzalez, Dr. Ravikumar 15 and Dr. Sirajullah is compelling, particularly the EMG. 16 17 There also exists other substantial non-medical evidence of activities inconsistent with total disability: 18 The claimant s son, Richard Aaron Hanrahan, states that the claimant 19 typically spends his days doing household chores, bathing and grooming, 20 eating, watching television and movies, and going to high school football 21 practices. He independently cares for himself, his dog, and his bird. He 22 drives a car and leaves his home every day. He had no trouble walking and 23 no lifting or pain problems were specified (Exhibit E). The claimant s son s 24 statements contrast dramatically with the claimant s own testimony that he 25 can lift only two pounds, stand and walk only 15 to 20 minutes at a time, 26 and sit for only 20 minutes at a time. Surely, his son, who lives with him, 27 would have noted such severe loss of capacity, if it actually existed. In any 28 8 1 case, the claimant s active, independent lifestyle is not consistent with a 2 finding of total disability. 3 (AR 16-17.) Claimant offers no answer to this evidence. Plaintiff also has not received 4 treatment (AR 402), much less sought aggressive pain treatment. (AR 17.) 5 The ALJ properly discounted Plaintiff s credibility with specific, clear and convincing 6 reasons supported by substantial evidence. The ALJ s RFC also is supported by substantial 7 evidence. 8 C. The ALJ Met The Commissioner s Burden To Prove That Plaintiff Can Perform Other Jobs In The National Economy 9 Based on the assessed RFC, the ALJ determined at step four of the sequential 10 process that Plaintiff could not perform his past relevant work in air-conditioning and 11 heating. (AR 17.) Relying on the testimony of the vocational expert, the ALJ determined at 12 step five of the sequential process that Plaintiff could perform other jobs in significant 13 numbers in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1099-1100 (9th Cir. 14 1999). This determination is supported by substantial evidence. 15 The ALJ utilized the Social Security Administration s Medical Vocational Guidelines 16 ( Guidelines or grids ) as a framework for decisionmaking pursuant to 20 C.F.R. 17 § 416.969a(d) and Social Security Rulings 83-12 and 83-14. The Guidelines were 18 promulgated in 1978. See generally Heckler v. Brown, 461 U.S. 458, 460 (1983) (upholding 19 the Guidelines). They provide a system for disposing of cases that involve substantially 20 uniform levels of impairment. Desrosiers v. Sec y of Health & Human Services, 846 F.2d 21 573, 578 (9th Cir. 1988) (Pregerson, J., concurring). The grids correlate a claimant s age, 22 education, previous work experience, and RFC to direct a finding of disabled or not 23 disabled, without the need of testimony from vocational experts. Cooper v. Sullivan, 880 24 F.2d 1152, 1155 (9th Cir. 1989); Heckler, 461 U.S. at 461. The grids, however, only apply 25 where they completely and accurately represent a claimant s limitations. Tackett, 180 F.3d 26 at 1101 (emphasis in original); see also Heckler, 461 U.S. at 462 n.5. 27 28 9 The grids present in table form a shorthand method for determining the availability 1 2 and number of suitable jobs for a claimant. Tackett, 180 F.3d at 1101. The grids categorize 3 jobs by three physical exertional levels, consisting of sedentary, light and medium work. 4 Id. These exertional levels are further divided by the claimant s age, education and work 5 experience. Id. The grids direct a finding of disabled or not disabled based on the number 6 of jobs in the national economy in the appropriate exertional category. Id. A claimant must 7 be able to perform the full range of jobs in an exertional category for the grids to apply. Id. The ALJ must apply the grids if a claimant suffers only from an exertional 8 9 impairment. Cooper, 880 F.2d at 1155. The grids direct a ruling of disabled or not 10 disabled. Id. If the grids direct a finding of disabled, the ALJ is bound by that result. Id. at 11 1157. 12 The Ninth Circuit recognizes that nonexertional limitations may make the grids 13 inapplicable. Tackett, 180 F.3d at 1101-1102. Nonexertional limitations are non-strength 14 related limitations that include mental, postural, manipulative, sensory, or environmental 15 limitations. Cooper, 880 F.2d at 1155 n.7. 16 In cases involving both exertional and nonexertional limitations, the grids are 17 consulted first to determine whether a finding of disabled can be based on exertional 18 limitations alone. Id. at 1155. If so, the grids direct a finding of disability which the 19 Commissioner must accept. Id. at 1157. 20 If not, the ALJ must use the grids as a framework for consideration of how much the 21 nonexertional limitations limit the range of work permitted by the exertional limitations. 22 Tackett, 180 F.3d at 1102. A nonexertional impairment, if significant, may limit the 23 claimant s functional capacity in ways not contemplated by the grids. Id. In such instances, 24 the ALJ may not rely on the grids alone for the availability of jobs but must obtain the 25 testimony of a vocational expert. Id.; Thomas, 278 F.3d at 960; Moore, 216 F.3d at 869-71. 26 In this case, Plaintiff asserts nonexertional manipulative limitations. The ALJ 27 determined that, if Plaintiff could perform the full range of light work, the Guidelines would 28 10 1 direct a finding of not disabled. (AR 18.) Because Plaintiff s ability to work was impeded by 2 additional postural, visual and manipulative limitations that may erode the unskilled light 3 occupational base, the ALJ properly consulted a vocational expert to determine whether 4 jobs exist in substantial numbers in the national economy that Plaintiff can perform. See, 5 e.g., Moore, 216 F.3d at 869 (7,700 regional and 125,000 national jobs was substantial 6 evidence to support determination of not disabled); Thomas, 278 F.3d at 960 (1,300 local 7 and 620,000 nationally sufficient); Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) 8 (2300 local and 64,000 nationally sufficient). 9 The vocational expert in this case testified that Plaintiff could perform the jobs of 10 cashier, cleaner/housekeeper (27,000 locally), storage facility clerk (6,700 locally) and usher 11 (2,000 locally), all of which are light exertion and unskilled. (AR 18.) The ALJ therefore met 12 the Commissioner s step five burden to demonstrate that jobs exist in substantial numbers 13 in the national economy that Plaintiff can perform. Plaintiff is not disabled within the 14 meaning of the Social Security Act. ORDER 15 16 17 18 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing the case with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE DATED: August 12, 2010 21 22 23 24 25 26 27 28 11

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