Thomas S. Johnson v.Michael J. Astrue, No. 2:2010cv09881 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: For the reasons set forth above, the Agency's decision is affirmed. IT IS SO ORDERED.**PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS** (ca)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 THOMAS S. JOHNSON, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-9881-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying his application for Disability 20 Insurance benefits ( DIB ). 21 Judge ( ALJ ) erred when he rejected the treating physician s opinion 22 that Plaintiff was disabled and relied instead on the non-treating 23 physicians opinions to conclude that Plaintiff could work. 24 reasons discussed below, the Agency s decision is affirmed. 25 26 II. He claims that the Administrative Law For the SUMMARY OF PROCEEDINGS In 2007, Plaintiff applied for DIB, alleging that he was disabled 27 as of May 27, 2006, due to back and shoulder problems. 28 tive Record ( AR ) 52-53, 123.) (Administra- The Agency denied the application 1 initially and on reconsideration. Plaintiff then requested and was 2 granted a hearing before an ALJ. Plaintiff appeared with counsel and 3 testified at the hearing on November 16, 2009. 4 subsequently issued a decision denying benefits. 5 Plaintiff appealed to the Appeals Council, which denied review. 6 4-6.) 9 III. A. The ALJ (AR 17-25.) (AR He then commenced this action. 7 8 (AR 28-51.) ANALYSIS The ALJ s Rejection of the Treating Doctor s Opinion Plaintiff was treated by orthopedist Kalid B. Ahmed from July 20, 10 2007, to October 24, 2008. 11 capacity questionnaire he filled out on August 28, 2007, Dr. Ahmed 12 opined that Plaintiff could not stand or walk at all and could sit for 13 only thirty minutes at a time and for a maximum of one hour a day. 14 (AR 365-66.) 15 Plaintiff could perform a full range of medium work. 16 Plaintiff contends that the ALJ erred in doing so. 17 explained below, the Court finds that the ALJ did not err. 18 (AR 373-523.) In a residual functional The ALJ rejected Dr. Ahmed s opinion and found that (AR 20-24.) For the reasons By rule, the [Agency] favors the opinion of a treating physician 19 over non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th 20 Cir. 2007); see also Morgan v. Comm r, 169 F.3d 595, 600 (9th Cir. 21 1999) (explaining that a treating physician s opinion is given 22 deference because he is employed to cure and has a greater 23 opportunity to know and observe the patient as an individual 24 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987))). 25 this reason, a treating doctor s opinion that is well-supported and 26 consistent with other substantial evidence in the record will be given 27 controlling weight. 28 418, 421 (9th Cir. 1988). For Orn, 495 F.3d at 631; Embrey v. Bowen, 849 F.2d An ALJ may, however, reject the opinion of 2 1 a treating doctor that is contradicted by another doctor s opinion for 2 specific and legitimate reasons supported by substantial evidence 3 in the record. 4 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 5 The ALJ cited numerous reasons for discounting Dr. Ahmed s Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) 6 opinion. He noted that the opinion was provided in a standard form 7 supplied by counsel as opposed to being set out in a written report. 8 (AR 22.) 9 opinion was contained in a check-the-box form (AR 356-66) and, as a The record supports this finding. Dr. Ahmed s August 2007 10 result, was entitled to less deference than an opinion contained in a 11 written report. 12 1996) (holding ALJ may reject check-off reports that [do] not contain 13 any explanation of the bases of their conclusions ); Murray, 722 F.2d 14 at 501 (noting individualized medical opinions are preferred over 15 check-the-box forms). 16 See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. The ALJ also rejected the opinion because it was excessive and 17 was not supported by Dr. Ahmed s ongoing treatment notes. 18 finding is supported by the record. 19 twice when he offered his August 28, 2007 opinion that Plaintiff was 20 disabled, the first time on July 20, 2007, and the second on August 21 10, 2007. 22 from these two visits suggests any basis for his findings that 23 Plaintiff could only sit for thirty minutes at a time (for a total of 24 one hour in an eight-hour workday) and could not stand or walk at all. 25 (AR 365.) 26 Plaintiff s worker s compensation case -a report he prepared after 27 having treated Plaintiff monthly for a year--Dr. Ahmed opined that (AR 461-64, 507-16.) Again, this Dr. Ahmed had only seen Plaintiff Nothing in Dr. Ahmed s chart notes Further, in an October 2008 report Dr. Ahmed submitted in 28 3 1 Plaintiff was only precluded from heavy lifting, pulling, and pushing. 2 (AR 373.) 3 The ALJ also relied on the fact that Dr. Ahmed s opinion was 4 contradicted by the other doctors opinions, including the orthopedic 5 specialists who weighed in on Plaintiff s condition in this case. 6 22.) 7 weeks before Dr. Ahmed opined that Plaintiff was incapable of 8 standing, examining orthopedist Bunsri Sophon opined that, though 9 limited in his ability to lift (25 pounds occasionally and 15 pounds 10 frequently) and to reach above his shoulder, Plaintiff had no other 11 functional limitations. 12 the conflicts in the medical evidence, see Andrews v. Shalala, 53 F.3d 13 1035, 1041 (9th Cir. 1995), and the Court cannot say that he erred in 14 doing so here. 15 There is evidence to support this finding. (AR 295.) (AR For example, two The ALJ was tasked with resolving The ALJ pointed out that Dr. Ahmed s opinion was internally 16 inconsistent. 17 same form in which Dr. Ahmed checked a box indicating that Plaintiff 18 could stand/walk for zero hours in an eight-hour workday, he opined 19 that Plaintiff could stand/walk for 30 minutes at a time. 20 This contradiction is another reason to question Dr. Ahmed s opinion. 21 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (upholding 22 ALJ s rejection of treating doctor s opinion that was internally 23 inconsistent). 24 (AR 22.) The record supports this finding. In the (AR 365.) The ALJ noted that Dr. Ahmed s opinion was inconsistent with 25 Plaintiff s reported daily activities. (AR 22.) This, too, is true. 26 Plaintiff testified at the administrative hearing in 2009 that he 27 could stand for ten to 15 minutes, wash dishes, and prepare meals. 28 (AR 33, 42-43.) This is inconsistent with Dr. Ahmed s opinion that 4 1 Plaintiff was incapable of standing/walking at all during an eight- 2 hour workday. 3 sitting up and that he usually slept eight to ten hours a day. 4 36-37.) 5 limited to sitting for no more than 30 minutes at one time and no more 6 than one hour a day (AR 365) and is a valid reason for questioning Dr. 7 Ahmed s opinion. 8 Cir. 1989) (upholding ALJ s rejection of treating physician s opinion 9 that was contradicted by claimant s testimony). (AR 365.) Plaintiff also claimed to sleep while (AR This contradicts Dr. Ahmed s finding that Plaintiff was See Magallanes v. Bowen, 881 F.2d 747, 751-52 (9th 10 The ALJ noted that Dr. Ahmed s disability opinion was based on 11 worker s compensation definitions, not social security definitions, 12 and went to the ultimate issue of disability. 13 findings are supported by the record. 14 couched in terms of temporary total disability (AR 384), a worker s 15 compensation term used to convey that the worker is unable to return 16 to his current job. 17 1099, 1104-05 (C.D. Cal. 2002) (citing Macri v. Chater, 93 F.3d 540, 18 544 (9th Cir. 1996)). 19 mean that a claimant is disabled under social security law. 20 even assuming that it did, Dr. Ahmed s opinion that Plaintiff was 21 disabled was not binding on the ALJ. 22 the exclusive province of ALJs, not doctors. 23 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (noting treating 24 physician s opinion that claimant is disabled is not binding on the 25 ALJ); Social Security Ruling 96-5p (explaining doctors opinions 26 regarding ultimate issue of disability can never be entitled to 27 controlling weight or given special significance ). (AR 23.) These Dr. Ahmed s opinions were See, e.g., Booth v. Barnhart, 181 F. Supp.2d It is not a social security term and does not 28 5 Further, Disability determinations are See, e.g., Tonapetyan v. 1 The ALJ cited several other reasons for discounting Dr. Ahmed s 2 opinion, some valid, some not. As Plaintiff points out, for example, 3 the ALJ incorrectly found that there were no electrodiagnostic studies 4 to support Dr. Ahmed s findings that Plaintiff suffered from 5 radiculopathy or neuropathy. 6 Ali performed electromyography tests on Plaintiff and concluded that 7 the results were abnormal, revealing mild radiculopathy. 8 Despite the ALJ s error here and the fact that he provided some other 9 less than persuasive reasons for questioning Dr. Ahmed s work, the (Joint Stip. at 8, 18.) In fact, Dr. (AR 494.) 10 Court finds that he set forth more than enough valid reasons for 11 rejecting Dr. Ahmed s opinion. 12 affirmed. 13 2008) (upholding ALJ s rejection of treating doctors opinions despite 14 the fact that some of the reasons cited by the ALJ were invalid since 15 remaining reasons were enough to support the finding). 16 B. 17 As such, this finding will be See Donathan v. Astrue, 264 Fed. App x 556, 559 (9th Cir. The ALJ s Residual Functional Capacity Assessment The ALJ found that Plaintiff could perform medium work, i.e., he 18 could sit, stand, or walk for six hours a day, lift, carry, push, or 19 pull 25 pounds frequently and 50 pounds occasionally, and could 20 frequently lift above his shoulder. 21 that the ALJ improperly relied on a non-examining state agency 22 physician to reach this conclusion and also that he ignored certain 23 limitations in doing so. 24 reasons, the Court concludes that, even assuming the ALJ erred, any 25 error was harmless. 26 (AR 20.) Plaintiff complains (Joint Stip. at 20-23.) For the following The ALJ s ultimate determination that Plaintiff was not disabled 27 was based on his finding that Plaintiff could perform his past work as 28 a security guard. (AR 24-25.) This is light work. 6 See Dictionary of 1 Occupational Titles ( DOT ) No. 372.667-038. 2 the ALJ erred in relying on the wrong doctor to conclude that 3 Plaintiff was capable of performing medium work, the error did not 4 affect the ALJ s ultimate conclusion that Plaintiff was not disabled 5 and, therefore, is harmless. 6 454 F.3d 1050, 1056 (9th Cir. 2006) (holding error that does not 7 affect ultimate disability determination is harmless).1 8 9 Thus, even assuming that See Stout v. Comm r, Soc. Sec. Admin., The same analysis and the same result applies to Plaintiff s contention that the ALJ erred in overlooking Plaintiff s restriction 10 for overhead reaching. In Plaintiff s view, this limitation precludes 11 him from performing work as a security guard. 12 Again, the Court disagrees. 13 of this job -which sets forth how it is regularly performed in the 14 economy--that suggests that overhead reaching is required at all. 15 DOT No. 372.667-038. 16 to reach overhead when he worked as a security guard. 17 Thus, any limitation in reaching Plaintiff may suffer from does not 18 preclude work as a security guard, either as he actually performed the 19 job or as it is typically performed in the economy. (Joint Stip. at 20-22.) There is nothing in the DOT description See And, according to Plaintiff, he was not required (AR 115, 124.) 20 21 22 23 24 25 26 27 28 1 Certainly, there is sufficient evidence in this record to support a finding that Plaintiff can perform light work. In addition to the non-examining physician who opined that Plaintiff could perform medium work, Plaintiff s treating physician, Dr. Ahmed, opined in 2009 that Plaintiff was only restricted from heavy lifting, pulling, and pushing. (AR 373.) Examining orthopedist Sophon determined that Plaintiff was capable of light work. (AR 295.) Examining orthopedic surgeon Jack Akmakjian determined that Plaintiff was restricted only from heavy lifting and repetitive bending, stooping, lifting, and carrying. (AR 630-31.) And examining orthopedic surgeon John Santaniello found that Plaintiff s only restriction was heavy lifting. (AR 642.) 7 1 Finally, Plaintiff complains that the ALJ did not include a 2 limitation for nausea and vomiting, side effects he experienced from 3 his medications. 4 effects came from Plaintiff himself and he was deemed not credible by 5 the ALJ. 6 formulating his residual functional capacity. 7 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (holding ALJ need only 8 include limitations she finds credible and supported by substantial 9 evidence in residual functional capacity finding). 10 (Joint Stip. at 20, 22.) (AR 24.) Thus, the ALJ was not required to consider them in 13 See Bayliss v. As such, there was no error here. 11 12 But the evidence of side IV. CONCLUSION For the reasons set forth above, the Agency s decision is affirmed. 14 IT IS SO ORDERED. 15 DATED: December 9, 2011. 16 17 18 19 20 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\JOHNSON, T 9881\memorandum opinion and order.wpd 8
]]>
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.
