Chadwick Rambo Gordon v. Michael J Astrue, No. 2:2012cv07830 - Document 37 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The ALJ's decision that Plaintiff is not disabled is affirmed and the action is dismissed with prejudice. IT IS SO ORDERED. See order for details. (jy)
Download PDF
<![CDATA[
Chadwick Rambo Gordon v. Michael J Astrue Doc. 37 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CHADWICK RAMBO GORDON, 11 12 13 Plaintiff, v. 14 CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-7830-PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration ( the Agency ), denying his applications for Disability 21 Insurance Benefits ( DIB ) and Supplemental Security Income ( SSI ). 22 He claims that the Administrative Law Judge ( ALJ ) erred in when he 23 (1) found that Plaintiff was not credible, (2) rejected the opinion of 24 an examining physician, (3) failed to consider the combined effects of 25 Plaintiff s impairments, and (4) relied on the vocational expert s 26 testimony. 27 affirmed. For the reasons discussed below, the Agency s decision is 28 Dockets.Justia.com 1 II. 2 SUMMARY OF FACTS AND PROCEEDINGS 3 In 1988, at the age of four, Plaintiff suffered severe burns to 4 his upper torso and underwent multiple skin grafts to repair the 5 resulting damage to his skin. 6 33.) 7 alleging that he had been unable to work since September 2007 due to 8 third-degree burns on his body, limited use of his hands and arms, and 9 back pain. (Administrative Record ( AR ) 309, 332- In March 2009, at the age of 25, he applied for DIB and SSI, (AR 66-72, 111.) His application was denied initially and 10 on reconsideration and, thereafter, he requested and was granted a 11 hearing before an ALJ. 12 appeared at the hearing with counsel and testified. 13 August 4, 2011, the ALJ denied his claim for benefits, finding that 14 Plaintiff was not disabled. 15 Appeals Council, which denied his request for review. 16 This action followed. (AR 23-31, 34-38.) (AR 12-21.) 17 (AR 318-56.) On Plaintiff appealed to the (AR 2-4, 7-8.) III. 18 On July 28, 2011, he ANALYSIS 19 A. 20 The ALJ Properly Considered Plaintiff s Testimony Plaintiff testified that the pain and limitations caused by his 21 burns prevented him from working full time. 22 rejected this testimony and found that Plaintiff could perform light 23 work that did not require bending or stooping or more than occasional 24 handling with his left hand. 25 the ALJ erred in his credibility determination. 26 19.) 27 28 (AR 17, 18.) (AR 111, 334.) The ALJ Plaintiff contends that (Joint Stip. at 3- For the following reasons, the Court disagrees. ALJs are tasked with judging the credibility of witnesses, including the claimants. In making these credibility determinations, 2 1 they may rely on ordinary credibility evaluation techniques. 2 v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 3 produced objective medical evidence of an impairment which could 4 reasonably be expected to produce the symptoms alleged and there is no 5 evidence of malingering, however, the ALJ can only reject the 6 testimony for specific, clear, and convincing reasons, id. at 1283-84, 7 that are supported by substantial evidence in the record. 8 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 9 Smolen Where a claimant has Thomas v. Plaintiff alleged in a written disability report that he could 10 not grip anything with his left hand and that he could not sit or 11 stand for very long because any length of time sitting or standing 12 resulted in severe back pain, owing to the lack of muscles in his 13 back. 14 he had a part-time job as a janitor but that he had problems lifting, 15 sweeping, and mopping because of back pain and reduced mobility in his 16 arms. 17 because he could not lift anything, like chairs, trash cans, or 18 tables. 19 stand for long because his skin got tighter and tighter, as it had 20 gotten easier to tear in the last four years, and he had begun to 21 develop contractures in his left arm in 2008 or 2009. 22 (AR 111.) At the July 2011 hearing, Plaintiff testified that (AR 333-34.) (AR 339.) He testified that his cousin helped at work Plaintiff also explained that he could not sit or (AR 348, 355.) The ALJ concluded that Plaintiff s allegations were not entirely 23 credible because the medical records did not support the degree of 24 disability alleged by Plaintiff. 25 legitimate reason for questioning Plaintiff s testimony and it is 26 supported by substantial evidence. 27 F.3d 1157, 1165-66 (9th Cir. 2001) (upholding ALJ's credibility (AR 18.) This finding is a See, e.g., Osenbrock v. Apfel, 240 28 3 1 determination in part because medical evaluations revealed little 2 evidence of disabling abnormality). 3 Plaintiff alleged in his 2009 application that he could not sit 4 or stand for any length of time. 5 examining orthopedist Dr. Richard Pollis found that Plaintiff would be 6 able to sit, stand, and walk for six hours in an eight-hour workday.1 7 (AR 169.) 8 who examined Plaintiff in prison suggested that he could not sit or 9 stand. (AR 111.) In April 2008, however, Prison records supported this finding. (AR 188-282, 224.) None of the doctors Rather, they recommended that he, for 10 example, be housed on the first floor or on a lower bunk and that he 11 not be assigned work that required bending or squatting. 12 In fact, in March 2009, one of the prison doctors found that 13 Plaintiff s claimed disability was not supported by examination 14 evidence. 15 that he could not sit or stand were exaggerated. 16 (AR 188.) (AR 247.) These records suggest that Plaintiff s claim The ALJ also questioned Plaintiff s testimony because he claimed 17 that his condition had gotten worse since 2007 or 2008 (AR 19, 335, 18 347-48) but the medical evidence did not support that claim.2 19 153-54, 161.) 20 testimony. 21 (holding ALJ may rely on claimant's unexplained failure to seek 22 treatment to find that complaints are exaggerated). 23 24 (AR This is a valid reason for questioning a claimant s See Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) The ALJ also discounted Plaintiff s testimony because he was able to work in the past, albeit part-time, and because he continued to 25 26 1 Plaintiff s challenge to the ALJ s adoption of Dr. Pollis opinion is addressed in the following section below. 27 2 28 In the Joint Stipulation, Plaintiff contends that his condition is progressively deteriorating. (Joint Stip. at 9.) 4 1 work once a week as a janitor right up through the date of the 2 hearing. (AR 19.) 3 On the one hand, Plaintiff testified that the janitor job involved 4 cleaning and sweeping for seven to eight hours on Saturdays, which 5 seemingly conflicted with Plaintiff s claim that he could not stand 6 for any length of time. 7 testified that his cousin helped him perform the work, leaving it 8 unclear exactly what it was that Plaintiff did himself. 9 balance, therefore, the Court does not find this a convincing reason 10 The Court finds the evidence mixed on this point. (AR 322.) On the other hand, Plaintiff (AR 334.) On for questioning Plaintiff s testimony. 11 The ALJ also found Plaintiff not credible because he was capable 12 of caring for his needs and performing most household chores provided 13 that he did not use his left arm or hand. 14 not find this explanation convincing, either. 15 that Plaintiff could care for himself, this care was limited to 16 personal hygiene and, for example, cleaning his prison cell three 17 times a week. 18 does not call into question his claim that he could not work full 19 time. 20 Cir. 2010) (finding ALJ s adverse credibility determination 21 unsupported where claimant only performed the amount and extent of 22 work that he was able to within his limited capabilities and not the 23 heavy work cited to by the ALJ. ) 24 (AR 144, 145.) (AR 18-19.) The Court does Though the record shows His ability to perform these activities See, e.g., Hostrawser v. Astrue, 364 F. App x 373, 377 (9th The issue that remains is whether the ALJ s credibility finding 25 should be upheld, despite the errors discussed above. 26 v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) 27 (holding error by ALJ in credibility determination is harmless [s]o 28 long as there remains substantial evidence supporting the ALJ's 5 See Carmickle 1 conclusions on . . . credibility and the error does not negate the 2 validity of the ALJ's ultimate credibility conclusion ). 3 Court finds that the ALJ s first two reasons--that the medical 4 evidence did not support Plaintiff s allegations and that Plaintiff 5 failed to seek medical attention for his supposedly disabling pain - 6 are enough to support his finding that Plaintiff was not credible. 7 Plaintiff contends that the ALJ erred in overlooking the Here, the 8 testimony of his non-attorney representative, who shared a housing 9 unit with Plaintiff in prison. (Joint Stip. at 17-18.) In April 10 2009, the representative filled out a four-page form on which he 11 stated that Plaintiff suffered a lot of pain from his burn scars, had 12 difficulty sleeping, and appeared fatigued at times. 13 The representative also noted that Plaintiff was willing to try to 14 work but burns on body do not allow him to do so. 15 (AR 140, 141.) (AR 140.) Clearly, the ALJ erred in failing to address this input but the 16 Court finds that the error was harmless because it was inconsequential 17 to the ALJ s ultimate decision. 18 comment that Plaintiff was not able to work, which is a conclusion on 19 an issue reserved to the Agency, Tonapetyan v. Halter, 242 F.3d 1144, 20 1149 (9th Cir. 2001), the representative s other observations, even if 21 credited, would not have caused a reasonable ALJ to conclude that 22 Plaintiff was disabled. 23 (9th Cir. 2012). 24 B. 25 Other than the representative s See Molina v. Astrue, 674 F.3d 1104, 1116 Thus, this claim is rejected. The ALJ s Rejection of Dr. Bader s Opinion The ALJ rejected the opinion of one examining doctor, Dr. Semon 26 Bader, and adopted the opinion of another examining doctor, Dr. 27 Richard Pollis. 28 the following reasons, the Court will not disturb the ALJ s decision. Plaintiff claims that the ALJ erred in doing so. 6 For 1 ALJs are tasked with resolving conflicts in the medical evidence. 2 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 3 reject the opinion of an examining doctor that is contradicted by 4 another doctor s opinion, an ALJ must provide specific and legitimate 5 reasons that are supported by substantial evidence in the record. 6 Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 7 so, here. 8 9 In order to The ALJ did As noted above, Dr. Pollis examined Plaintiff in April 2008 and concluded that Plaintiff would be able to lift and carry 20 pounds 10 occasionally and ten pounds frequently; sit, stand, and walk six hours 11 in an eight-hour workday; and bend, stoop, crouch, and climb 12 frequently. 13 limited to activities that did not require fingering or typing, only 14 occasional handling and grasping with his left hand, and no more than 15 frequent handling, grasping, fingering, or typing with his right hand. 16 (AR 169.) 17 (AR 169.) Dr. Pollis also opined that Plaintiff would be Two years later, in May 2010, Dr. Bader examined Plaintiff and 18 concluded that Plaintiff would be able to lift and carry up to ten 19 pounds occasionally and five to ten pounds frequently and walk and 20 stand four hours in an eight-hour day. 21 opined that Plaintiff would be unable to climb, balance, kneel, crawl, 22 bend, crouch, stoop, walk on uneven terrain, or work at heights and 23 that he could never perform either fine or gross manipulation with his 24 hands. 25 (AR 313.) Dr. Bader also (AR 314.) The ALJ adopted Dr. Pollis opinion and rejected Dr. Bader s 26 opinion in concluding that Plaintiff would be able to perform light 27 work that did not involve more than occasional handling, fingering, or 28 grasping with his left hand, or more than occasional bending or 7 1 stooping.3 2 opinion was because he and Dr. Pollis had made similar clinical 3 findings but came to significantly different conclusions. 4 This is not a reason for rejecting one doctor s opinion in favor of 5 another s. 6 (AR 17.) The ALJ s first reason for rejecting Dr. Bader s (AR 19.) The ALJ next found that Dr. Bader s functional assessment was 7 inconsistent with his own examination findings. 8 legitimate basis for rejecting a doctor s opinion, Johnson v. Shalala, 9 60 F.3d 1428, 1432 33 (9th Cir. 1995) (affirming rejection of treating (AR 19.) This is a 10 doctor's opinion expressed in letter that was inconsistent with 11 doctor's own findings) and is supported by the record. 12 Bader found that Plaintiff walked with a slight limp, he also 13 determined that Plaintiff was able to toe and heel walk, did not use 14 an assistive device to walk, and was able to get on and off the 15 examining table without difficulty. 16 that Plaintiff s hips, knees, ankles, and feet were unremarkable. 17 312.) 18 walk or stand for more than four hours in an eight-hour work day (AR 19 313), was not supported by his examination results. 20 (AR 310.) Although Dr. Dr. Bader also found (AR Thus, Dr. Bader s finding that Plaintiff would not be able to The ALJ also found that Dr. Bader s assessment was inconsistent 21 with the other evidence of record. 22 legitimate basis for rejecting the doctor s opinion, see Magallanes v. 23 Bowen, 881 F.2d 747, 751-54 (9th Cir. 1989) (upholding ALJ's rejection 24 of treating doctor's opinion that was contradicted by evidence in the (AR 19.) This is also a 25 26 27 28 3 Light work is defined in the regulations as lifting no more than 20 pounds at a time with frequent lifting or carrying of up to ten pounds, or work requiring a good deal of walking or standing. 20 CFR ยงยง 404.1567(b), 416.967(b). 8 1 record), and is supported by the record. As set forth in more detail 2 above, Plaintiff did not produce any medical evidence to support his 3 claim that his condition had so deteriorated between 2008 and 2011 4 that he was disabled. 5 Bader s opinion is affirmed.4 6 C. For these reasons, the ALJ s rejection of Dr. The Combined Effects of Plaintiff s Impairments 7 Plaintiff contends that the ALJ failed to account for grip 8 strength and range of motion limitations found by Dr. Pollis and Dr. 9 Bader when the ALJ concluded that he could perform light work with no 10 more than occasional handling, fingering, or grasping with his left 11 hand. 12 (Joint Stip. at 42-45.) This argument is rejected. The record shows that the ALJ considered Plaintiff s ability to 13 use his hands and fingers in light of Dr. Pollis and Dr. Bader s 14 examinations and Plaintiff s work history. 15 found that Plaintiff s part-time work as a janitor would clearly 16 involve some fine and gross use of his hands. 17 is supported by the record. 18 seven to eight hours on Saturdays cleaning and sweeping. 19 These tasks require handling and grasping. 20 perform them undermines his argument that he is unable to occasionally 21 hold things at work. 22 forth any authority for the proposition that the ALJ was required to In particular, the ALJ (AR 19.) This finding Plaintiff testified that he was working (Joint Stip. at 47.) (AR 322.) And Plaintiff s ability to Nor has Plaintiff set 23 24 25 26 27 28 4 The Agency argues that reviewing physician A. Suarez s opinion also supports the ALJ s decision. (Joint Stip. at 40 citing AR 316-17.) The problem with this argument is that the record does not establish that the A. Suarez, who completed the case analysis form, is a physician; his or her name is given only as A. Suarez/V40, which suggests that he or she is, in fact, a case worker. (AR 315.) In any event, the ALJ did not cite to or rely on Suarez s opinion to support his decision. 9 1 translate the grip strength and range of motion findings of the 2 examining doctors -which the ALJ questioned--into functional 3 limitations. 4 2005) (rejecting argument that ALJ was required to [p]repar[e] a 5 function-by-function analysis for medical conditions or impairments 6 that the ALJ found neither credible nor supported by the record[.] ). 7 D. 8 9 10 11 See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. The Vocational Expert s Testimony Plaintiff argues that the ALJ did not include all of Plaintiff s limitations in the hypothetical question to the vocational expert. (Joint Stip. at 48-50.) This argument is without merit. The ALJ was required to include in his hypothetical question only 12 those limitations that he found credible and supported by substantial 13 evidence in the record. 14 rejected the limitations Plaintiff champions here and, therefore, he 15 was not required to include them in the hypothetical question to the 16 vocational expert. Bayliss, 427 F.3d at 1217. The ALJ properly 17 IV. 18 CONCLUSION 19 For these reasons, the ALJ s decision that Plaintiff is not 20 disabled is affirmed and the action is dismissed with prejudice. 21 IT IS SO ORDERED. 22 DATED: 9/26/14 23 24 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 25 26 27 28 S:\PJW\Cases-Social Security\GORDON, 7830\Memo Opinion and Order.wpd 10
]]>
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.
