Thomas Nguyen v. Carolyn W Colvin, No. 2:2013cv02575 - Document 17 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See memorandum for details. (hr)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 THOMAS NGUYEN, 12 Plaintiff, 13 14 15 v. Case No. 13-2575 JC MEMORANDUM OPINION CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. On April 16, 2013, plaintiff Thomas Nguyen ( plaintiff ) filed a Complaint 19 20 21 22 seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 23 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; April 17, 2013 Case Management Order ¶ 5. /// /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On October 26, 2010, plaintiff filed applications for Supplemental Security 7 Income and Disability Insurance Benefits. (Administrative Record ( AR ) 124, 8 129). Plaintiff asserted that he became disabled on January 1, 2010, due to a torn 9 right shoulder tendon, depression, a sleep disorder, high blood pressure, a calcified 10 spinal joint, and pain and numbness in his shoulder, arm and leg. (AR 144). The 11 ALJ examined the medical record and heard testimony from plaintiff (who was 12 represented by counsel and assisted by an interpreter) and a vocational expert on 13 November 14, 2011. (AR 49-68). 14 On November 30, 2011, the ALJ determined that plaintiff was not disabled 15 through the date of the decision. (AR 27-34). Specifically, the ALJ found: 16 (1) plaintiff suffered from the following severe impairments: degenerative disc 17 disease of the cervical and lumbar spine and right shoulder rotator cuff tear (AR 18 29); (2) plaintiff s impairments, considered singly or in combination, did not meet 19 or medically equal a listed impairment (AR 29-30); (3) plaintiff retained the 20 residual functional capacity to perform the full range of medium work as defined 21 in 20 C.F.R. §§ 404.1567(c), 416.967(c)2 (AR 30); (4) plaintiff could perform his 22 23 24 25 26 27 28 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Molina v. Astrue, 674 F.3d 1104, 1115-22 (9th Cir. 2012) (discussing contours of application of harmless error standard in social security cases) (citing, inter alia, Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006)). 2 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. §§ 404.1567(c), 416.967(c). A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying (continued...) 2 1 past relevant work as a deliveryman and handyman (AR 33); and (5) plaintiff s 2 allegations regarding his limitations were not credible to the extent they were 3 inconsistent with the ALJ s residual functional capacity assessment (AR 32). 4 The Appeals Council denied plaintiff s application for review. (AR 4). 5 III. APPLICABLE LEGAL STANDARDS 6 A. 7 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 8 unable to engage in any substantial gainful activity by reason of any medically 9 determinable physical or mental impairment which can be expected to result in 10 death or which has lasted or can be expected to last for a continuous period of not 11 less than 12 months. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 12 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 13 impairment must render the claimant incapable of performing the work claimant 14 previously performed and incapable of performing any other substantial gainful 15 employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 16 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 17 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 18 sequential evaluation process: 19 (1) 20 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 21 (2) Is the claimant s alleged impairment sufficiently severe to limit 22 the claimant s ability to work? If not, the claimant is not 23 disabled. If so, proceed to step three. 24 /// 25 26 27 28 2 (...continued) objects weighing up to 25 pounds. . . . [S]itting may occur intermittently during the remaining time. Social Security Rule ( SSR ) 83-10. Social Security rulings are binding on the Administration. Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 3 1 (3) Does the claimant s impairment, or combination of 2 impairments, meet or equal an impairment listed in 20 C.F.R. 3 Part 404, Subpart P, Appendix 1? If so, the claimant is 4 disabled. If not, proceed to step four. 5 (4) Does the claimant possess the residual functional capacity to 6 perform claimant s past relevant work? If so, the claimant is 7 not disabled. If not, proceed to step five. 8 (5) 9 Does the claimant s residual functional capacity, when considered with the claimant s age, education, and work 10 experience, allow the claimant to adjust to other work that 11 exists in significant numbers in the national economy? If so, 12 the claimant is not disabled. If not, the claimant is disabled. 13 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 14 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 15 1110 (same). 16 The claimant has the burden of proof at steps one through four, and the 17 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 18 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 19 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 20 proving disability). 21 B. 22 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 23 benefits only if it is not supported by substantial evidence or if it is based on legal 24 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 25 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 26 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 27 mind might accept as adequate to support a conclusion. Richardson v. Perales, 28 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 4 1 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 2 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 3 To determine whether substantial evidence supports a finding, a court must 4 consider the record as a whole, weighing both evidence that supports and 5 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 6 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 7 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 8 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 9 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 10 IV. DISCUSSION 11 Plaintiff contends that a reversal or remand is warranted because the ALJ s 12 residual functional capacity assessment was not supported by substantial evidence. 13 (Plaintiff s Motion at 3-7). More specifically, plaintiff essentially argues that, in 14 assessing plaintiff s residual functional capacity, the ALJ erroneously relied on 15 medical opinion evidence that failed to considered plaintiff s severe impairment of 16 degenerative disc disease of the cervical spine. (Plaintiff s Motion at 3-7). The 17 Court disagrees. 18 A. 19 At step four of the sequential evaluation process, the Commissioner may Pertinent Law 20 deny benefits if a claimant possesses the residual functional capacity to perform 21 his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f); see also 22 Pinto v. Massanari, 249 F.3d 840, 845 (2001) ( At step four, claimants have the 23 burden of showing that they can no longer perform their past relevant work. ) 24 (citations omitted). Residual functional capacity represents the most [a claimant] 25 can still do despite [his or her] limitations. 20 C.F.R. §§ 404.1545(a)(1), 26 416.945(a)(1). In determining a claimant s residual functional capacity, an ALJ is 27 required to consider all relevant evidence in the record, including medical records, 28 lay evidence, and the effects of symptoms, including pain, that are reasonably 5 1 attributed to a medically determinable impairment. Robbins, 466 F.3d at 883 2 (citations omitted); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) (residual 3 functional capacity is assessed based on all of the relevant evidence in [the] 4 record. ). 5 B. 6 First, substantial evidence supports the ALJ s assessment that plaintiff has Analysis 7 the residual functional capacity to perform a full range of medium work. On 8 February 15, 2011, Dr. Michael S. Wallack, a consultative examining physician, 9 completed an Internal Medicine Evaluation which included a physical examination 10 of plaintiff. (AR 307-13). Based on his examination of plaintiff and review of 11 plaintiff s medical records, Dr. Wallack diagnosed plaintiff with Hepatitis B, right 12 shoulder pain, and back/hip pain, and opined, among other things, that plaintiff 13 could basically do medium work (i.e., lift/carry 50 pounds occasionally and 25 14 pounds frequently, stand/walk for six hours and sit for eight hours in a work day) 15 with frequent postural limitations. (AR 307, 312). In a March 1, 2011 Physical 16 Residual Functional Capacity Assessment, Dr. B. Harris, a medical consultant, 17 opined based on plaintiff s medical records that plaintiff had the physical residual 18 functional capacity to do medium work (i.e., lift/carry 50 pounds occasionally and 19 25 pounds frequently, stand/walk for six hours and sit for six hours in a work day) 20 with no additional limitations. (AR 316-20). Dr. Wallack s opinions were 21 supported by his independent examination of plaintiff, and thus, even without 22 more, constituted substantial evidence supporting the ALJ s residual functional 23 capacity assessment. See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 24 Cir. 2001) (consultative examiner s opinion on its own constituted substantial 25 evidence, because it rested on independent examination of claimant); Andrews v. 26 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). The opinions of Dr. Harris, the 27 reviewing medical consultant, also constituted substantial evidence supporting the 28 ALJ s decision since they are consistent with the examining physician s opinions 6 1 and underlying independent examination, as well as the other medical evidence in 2 the record. See Tonapetyan, 242 F.3d at 1149 (holding that opinions of 3 nontreating or nonexamining doctors may serve as substantial evidence when 4 consistent with independent clinical findings or other evidence in the record); 5 Andrews, 53 F.3d at 1041 ( reports of the nonexamining advisor need not be 6 discounted and may serve as substantial evidence when they are supported by 7 other evidence in the record and are consistent with it ). 8 Second, the record belies plaintiff s assertion that Drs. Wallack and Harris 9 failed properly to consider plaintiff s severe impairment of cervical spine 10 degenerative disc disease. The report of Dr. Wallack s complete internal medicine 11 evaluation of plaintiff reflects, in pertinent part, that (1) Dr. Wallack reviewed 12 plaintiff s medical records which includ[ed] an x-ray report showing multilevel 13 degenerative disease involving the . . . neck ; (2) Dr. Wallack examined plaintiff s 14 neck but found no abnormalities and range of motion within normal limits ; and 15 (3) during the evaluation plaintiff did not report neck pain or any impairment 16 related to his neck. (AR 307-13) (emphasis added). Dr. Harris reviewed all of 17 plaintiff s medical records and, by inference, considered plaintiff s severe cervical 18 spine impairment to the same extent as Dr. Wallack s examining source statement. 19 (AR 320). Therefore, the absence of any findings related to plaintiff s cervical 20 spine does not, as plaintiff suggests, appear to be an oversight by either doctor but 21 instead reflects the apparent lack of any medical signs, laboratory findings or 22 documented symptoms in the record that would have justified finding any 23 functional limitation related to plaintiff s neck impairment. 24 Third, even so, in light of the medical expertise of Drs. Wallack and Harris, 25 it was wholly appropriate for the ALJ to rely on such doctors opinions regarding 26 functional limitations, if any, related to plaintiff s cervical spine impairment, as 27 opposed to adopting plaintiff s currently asserted lay assessment of the medical 28 evidence. See Gonzalez Perez v. Secretary of Health & Human Services, 812 F.2d 7 1 747, 749 (1st Cir. 1987) (ALJ may not substitute his own layman s opinion for 2 the findings and opinion of a physician ); Ferguson v. Schweiker, 765 F.2d 31, 37 3 (3d Cir. 1985) (ALJ may not substitute his interpretation of laboratory reports for 4 that of a physician); Winters v. Barnhart, 2003 WL 22384784, at *6 (N.D. Cal. 5 Oct.15, 2003) ( The ALJ is not allowed to use his own medical judgment in lieu of 6 that of a medical expert. ). 7 Finally, contrary to plaintiff s contention, the ALJ did not fail in her duty to 8 develop the record because she did not re-contact plaintiff s neurosurgeon (who 9 had recommended surgery for plaintiff s cervical spine), order a second 10 consultative examination, or obtain testimony from a medical expert at the 11 hearing. (Plaintiff s Motion at 7). Although plaintiff bears the burden of proving 12 disability, the ALJ has an affirmative duty to assist a claimant in developing the 13 record when there is ambiguous evidence or when the record is inadequate to 14 allow for proper evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453, 15 459-60 (9th Cir. 2001) (citation omitted); Bustamante, 262 F.3d at 954; see also 16 Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (ALJ has special duty fully 17 and fairly to develop record and to assure that claimant s interests are considered). 18 Where it is necessary to enable the ALJ to resolve an issue of disability, the duty 19 to develop the record may require consulting a medical expert or ordering a 20 consultative examination. See 20 C.F.R. §§ 404.1519a, 416.919a; Reed v. 21 Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (citing id.; 20 C.F.R. 22 §§ 404.1517-1519t, 416.917-919t); Carrillo Marin v. Secretary of Health and 23 Human Services, 758 F.2d 14, 17 (1st Cir. 1985) ( [I]f the Secretary is doubtful as 24 to the severity of [a claimant s] disorder the appropriate course is to request a 25 consultative evaluation. . . . ); see also Wren v. Sullivan, 925 F.2d 123, 128 (5th 26 Cir. 1991) (decision to order consultative examination rests within ALJ s 27 discretion) (citation omitted). 28 /// 8 1 Here, the ALJ did not state, nor does the record reflect, that the medical 2 evidence was ambiguous or that the record was otherwise inadequate to allow for 3 proper evaluation of plaintiff s disability. To the contrary, the ALJ properly relied 4 on the opinions of Drs. Wallack and Harris which, as discussed above, constituted 5 substantial evidence supporting the ALJ s non-disability determination. Plaintiff s 6 conclusory assertion that there was a dearth of medical source statements based 7 on the totality of [plaintiff s] impairments is inadequate to trigger the ALJ s duty 8 to develop the record. See, e.g., Reed, 270 F.3d at 842 ( The government is not 9 required to bear the expense of [a consultative] examination for every claimant. ) 10 (citations omitted). 11 V. CONCLUSION 12 For the foregoing reasons, the decision of the Commissioner of Social 13 Security is affirmed. 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 DATED: September 27, 2013 16 17 18 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 9

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.