Edwin Santana v. Michael J. Astrue, No. 8:2007cv01113 - Document 17 (C.D. Cal. 2008)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: For reasons set forth in this order, IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (SEE ORDER FOR DETAILS) (rh)

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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 EDWIN SANTANA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ______________________________) NO. EDCV 07-01113 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Edwin Santana ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter the Commissioner or the Agency ) denying his application 24 for Disability Insurance Benefits ( DIB ) and Supplemental Security 25 Income ( SSI ). 26 to the jurisdiction of the undersigned United States Magistrate Judge. 27 For the reasons stated below, the decision of the Commissioner is 28 AFFIRMED. The parties consented, pursuant to 28 U.S.C. § 636(c), 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for DIB and SSI on January 6, 2004 5 (Administrative Record ( AR ) 15). 6 of October 26, 1999 (AR 15, 82) due to pain in his neck, shoulder, arms, 7 and hands. 8 found this pain was due to multi-level cervical disc herniations with 9 radiculopathy to both upper extremities with status post cervical 10 fusion, bilateral shoulder and elbow strains, and shoulder tendinitis. 11 (AR 17). (AR 19). He alleged a disability onset date Administrative Law Judge ( ALJ ) Keith Dietterle Plaintiff also claimed he suffered from depression. (Id.). 12 13 The Agency denied Plaintiff s claim for DIB and SSI initially on 14 July 15 reconsideration. 16 hearing to review Plaintiff s claim. 17 on March 21, 2007. 18 decision before the Appeals Council, which denied his request on July 19 23, 2007. 20 decision of the Commissioner. 21 action on October 3, 2007. 22, 2004. (AR 68-69). (AR 15). (AR 4). This denial was upheld upon On January 31, 2007, the ALJ conducted a (AR 23). (Id.). The ALJ denied benefits Plaintiff sought review of the ALJ s The ALJ s decision therefore became the final (Id.). Plaintiff commenced the instant 22 23 III. 24 FACTUAL BACKGROUND 25 26 27 Plaintiff was born on May 11, 1959 and was forty-seven years old at the time of the hearing. (AR 82). 28 2 He has completed one year of 1 junior college. 2 expediter. (AR 638). He has past work experience as a materials (AR 644). 3 4 A. Plaintiff s Medical History 5 6 Plaintiff s injury occurred on September 2, 1999, during the course 7 of his work as a production control expiditer. 8 moving a . . . rack using a mule, backing it up, constantly looking over 9 [his] shoulders, when [he] felt discomfort in [his] neck area. (AR 185). He was (Id.). 10 Plaintiff was referred to a physical therapist who, on September 15, 11 1999, diagnosed Plaintiff with a strained neck and cervical radiculitis. 12 (AR 183). Plaintiff received regular checkups, and on October 26, 1999, 13 Dr. Joseph C. Laughlin, an Orthopedic Surgeon, diagnosed him with 14 degenerative cervical disc disease. 15 Plaintiff s impingement problems were in the mild category, not even 16 moderate, and that the majority of these mild symptoms can gradually 17 subside. (AR 159). Dr. Laughlin found that (AR 198). 18 19 In April 2001, Dr. Robert W. Hunt diagnosed Plaintiff with a 20 cervical thoracic strain with secondary radiculopathy to the bilateral 21 upper extremities, bilateral shoulder strain . . . , [and] bilateral 22 elbow strain. 23 Wong, 24 injuries. 25 ALJ that Plaintiff could both occasionally and frequently lift ten 26 pounds, could sit less than six hours per eight hour work day, and had 27 limited pushing and pulling abilities in his upper extremities. 28 579-80). (AR 380). summarized Plaintiff s treating physician, Dr. Winston Plaintiff s remaining abilities in light of his (AR 579-82). In a check off sheet, Dr. Wong reported to the (AR Additionally, Dr. Wong checked the boxes indicating that 3 1 Plaintiff was limited in his ability to reach and to work around hazards 2 such as machinery and heights. 3 Plaintiff s 4 occasionally climb, balance, kneel, crouch, crawl, or stoop. 5 80). 6 perform gross or fine manipulations, or see, hear, or speak, nor did it 7 prevent him from working around noise, dust, vibration, humidity or 8 wetness, fumes or odors, or in extreme temperatures. 9 Wong regularly refilled Plaintiff s prescriptions for medication to 10 injury did not (AR 581-82). affect his Dr. Wong indicated that ability to stand or to (AR 579- Plaintiff s impairment did not interfere with his ability to treat the above complaints. (AR 581-82). Dr. (Id.). 11 12 In 2001, Plaintiff attended and graduated from a thirteen week 13 vocational rehabilitation course. (AR 308). Even after he graduated 14 from the program, he continued to attend classes. (AR 327). 15 16 17 B. Consultative Examinations 18 19 Dr. Edwin Ashley, an orthopedic surgeon, examined Plaintiff on July 20 5, 2000, and November 8, 2000, and issued his final report on February 21 29, 2001. 22 Ashley diagnosed Plaintiff with a chronic right cervical sprain/strain, 23 a bilateral shoulder strain, and shoulder tendinitis. 24 Ashley concluded that Plaintiff was permanently partially disabled by 25 his injuries. 26 no lifting of more than twenty pounds and no overhead work. (AR 253-69). Over the course of those examinations, Dr. (AR 267). Dr. However, the only restrictions found by Dr. Ashley were 27 28 4 (AR 262). 1 On December 5, 2002, Dr. Alexander Angerman, an orthopedic surgeon, 2 met with Plaintiff to perform a Qualified Medical Examination. 3 333). 4 superimposed on discogenic and degenerative disease, as well as carpal 5 tunnel syndrome. (AR 358). However, the only limit Dr. Angerman placed 6 on Plaintiff s capacity for work was a restriction against very heavy 7 work and prolonged motions of the cervical spine. (AR Dr. Angerman diagnosed Plaintiff with a cervical spine strain (AR 360). 8 9 On June 23, 2004, Dr. Sarah Haze performed a neurological 10 evaluation of Plaintiff. 11 diagnosis, 12 occasionally lift twenty pounds and frequently lift fifteen to twenty 13 pounds. 14 stand, sit, and walk for six hours in an eight hour day, and could 15 perform fine motor activities with his arms. 16 that 17 flexibility than is obtained on formal testing. Dr. Haze (AR 368). Plaintiff (AR 365). concluded Though she did not provide a new that Plaintiff would be able to She additionally concluded that Plaintiff could could spontaneously move (Id.). his neck Dr. Haze noted with far more (Id.). 18 19 In the mental status portion of her exam, Dr. Haze noted that 20 Plaintiff appeared depressed, but that his general fund of knowledge was 21 excellent, he had no problems with immediate recall or remote and recent 22 memory, and his attention and concentration were not impaired. 23 367). (AR 24 25 Plaintiff underwent a formal psychiatric evaluation on March 17, 26 2004, with Dr. M. Becraft. (AR 559). 27 with both Affective Disorders and Substance Addiction Disorders. 28 5 Dr. Becraft diagnosed Plaintiff 1 In the evaluation, Dr. Becraft wrote the following: . . . Clmts. 2 all[egations] not fully credible, esp. given severity of drinking 3 problem. 4 [history] minimal. 5 Disorders, Dr. Becraft wrote ETOH [alcohol] Dep. [dependency] vs. 6 abuse ongoing. 7 evaluation, Dr. Becraft found that Plaintiff only had mild limitations 8 of his mental functions and no episodes of decompensation. Even tho., impairment non-severe and t [treatment] hx Also, under the diagnosis of Substance Addiction (AR 560). In the Functional Limitation portion of the (AR 570). 9 10 C. Plaintiff s Testimony 11 12 On January 31, 2007, Plaintiff appeared at a hearing before the 13 ALJ. (AR 634). He testified that the injury at issue in this case 14 occurred in 1999, while at work. 15 a drainage ditch while looking over his shoulder, injuring his neck. 16 (Id.). 17 constant pain in his neck, shoulders, and arms. (AR 643). He was backing up and hit As a result of that incident, Plaintiff testified that he has (AR 640). 18 19 Plaintiff testified that, at the time of the hearing, he was living 20 with his wife and three children, ages five, four and five months. 21 624). 22 He testified that he needs help scrubbing his back when bathing. 23 641). 24 He testified that he does not do any cooking, cleaning, or other 25 household chores, instead relying on his wife and mother-in-law. 26 641-42). 27 watching T.V. He takes his children to the park and the market. (AR (AR 631). He has difficulty raising his arms to put on a shirt. (AR (Id.). (AR He spends his time reading, eating, sitting on the couch and (AR 628). He does not drive because he does not have a 28 6 1 drivers license. 2 driving with a suspended license in 2005. (AR 629). He lost his license when he was caught (AR 629-630). 3 4 Plaintiff takes several medications. He testified that he takes 5 Soma and Norco in the mornings, and a Valium at night before going to 6 sleep. 7 before the hearing, Plaintiff told the ALJ that those medications would 8 not affect his testimony. 9 medication was working, he could sit for ten to fifteen minutes. (AR 637, 642). Despite having taken the Soma and the Norco (AR637). Plaintiff testified that when the 10 642). 11 and walk around to relieve his pain. (AR If it was not working, Plaintiff said that he needed to get up (Id.). 12 13 D. Vocational Expert s Testimony 14 15 Kelly Winn-Voytay testified at the January 31, 2007, hearing as a 16 vocational expert ( VE ). (AR 644). After the VE heard Plaintiff s 17 testimony and reviewed his file, the ALJ posed two hypotheticals to the 18 VE. 19 materials expiditer and one year of college education, who could both 20 speak and read English. 21 described a person who could sit or stand and walk for six hours out of 22 an eight hour day. 23 pounds and frequently lift ten pounds. 24 frequently use both arms to push, pull, and perform gross manipulations. 25 (Id.). 26 balance, stoop, kneel, crouch, or crawl, and could not reach overhead, 27 turn his neck, or work around unprotected heights, dangerous machinery, 28 or fast moving machinery. (Id.). Given this hypothetical, the VE found In both, the VE considered a person with work experience as a (AR 645). (Id.). In the first hypothetical, the ALJ The person could occasionally lift twenty (Id.). The person could This hypothetical person could only occasionally climb, bend, 7 1 that such a person could not return to his past job as a materials 2 expiditer, but could find work as a cashier or an office helper. 3 645-46). 4 with the restriction that the person could only occasionally and 5 frequently lift ten pounds. 6 that the person would not be suited for work as an office helper, but 7 could still perform work as a cashier. (AR The second hypothetical was identical to the first, except (AR 646). With that change, the VE found (Id.). 8 9 IV. 10 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 11 12 To qualify for disability benefits, a claimant must demonstrate 13 a medically determinable physical or mental impairment that prevents him 14 from engaging in substantial gainful activity1 and that is expected to 15 result in death or to last for a continuous period of at least twelve 16 months. 17 42 U.S.C. § 423(d)(1)(A)). 18 incapable of performing the work he previously performed and incapable 19 of performing any other substantial gainful employment that exists in 20 the national economy. 21 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 22 To decide if a claimant is entitled to benefits, an ALJ conducts 23 24 a five-step inquiry. 25 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 8 1 (1) Is the claimant presently engaged in substantial gainful 2 activity? 3 If not, proceed to step two. If so, the claimant is found not disabled. 4 5 (2) Is the claimant s impairment 6 claimant is found not disabled. 7 severe? If not, the three. If so, proceed to step 8 9 (3) Does the claimant s impairment meet or equal one of a 10 list of specific impairments described in 20 C.F.R. Part 11 404, Subpart P, Appendix 1? 12 found disabled. If so, the claimant is If not, proceed to step four. 13 14 (4) Is the claimant capable of performing her past work? 15 so, the claimant is found not disabled. 16 If to step five. If not, proceed 17 18 (5) Is the claimant able to do any other work? 19 claimant is found disabled. 20 If not, the found not disabled. If so, the claimant is 21 22 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 23 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 24 Cir. 2001) (citations omitted). 25 26 The claimant has the burden of proof at steps one through four, and 27 the Commissioner has the burden of proof at step five. 28 F.3d at 953-54. Bustamante, 262 If, at step four, the claimant meets his burden of 9 1 establishing an inability to perform past work, the Commissioner must 2 show that the claimant can perform some other work that exists in 3 significant numbers in the national economy, taking into account the 4 claimant s residual functional capacity ( RFC ),2 age, education, and 5 work experience. 6 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 do so by the testimony of a VE or by reference to the Medical-Vocational 8 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 9 (commonly known as the Grids ). Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner may Osenbrock v. Apfel, 240 F.3d 1157, 10 1162 (9th Cir. 2001). When a claimant has both exertional (strength- 11 related) and nonexertional limitations, the Grids are inapplicable and 12 the ALJ must take the testimony of a VE. 13 869 (9th Cir. 2000). Moore v. Apfel, 216 F.3d 864, 14 15 V. 16 THE ALJ S DECISION 17 18 The ALJ employed the five-step sequential evaluation process and 19 concluded that Plaintiff was not disabled within the meaning of the 20 Social Security Act. (AR 23). At the first step, the ALJ observed that 21 Plaintiff had not engaged in substantial gainful activity at any time 22 relevant to his decision. 23 the severe impairments of multi level cervical disc herniations with 24 radiculopathy to both upper extremities with status post cervical (AR 17). Next, he found that Plaintiff had 25 26 27 28 2 Residual functional capacity is the most [one] can still do despite [one s] limitations and represents an assessment based on all the relevant evidence in [one s] case record. 20 C.F.R. §§ 404.1545(a), 416.945(a). 10 1 fusion, bilateral shoulder and elbow strains, and shoulder tendinitis. 2 (Id.). 3 a severe mental impairment. He specifically found Plaintiff s depression did not amount to (AR at 17-18). 4 5 At the third step, the ALJ found that the severe impairments at 6 step two did not meet or medically equal a listed impairment. 7 Next, at step four, the ALJ found that Plaintiff could no longer perform 8 his 9 restrictions. (AR 18, 22). The ALJ found that Plaintiff could lift and 10 carry twenty pounds occasionally and ten pounds frequently, sit for six 11 hours, and stand or walk for six hours in an eight hour day. 12 Additionally, Plaintiff could perform frequent pushing and pulling, as 13 well as frequent gross manipulation with both upper extremities and 14 occasional 15 crawling. (Id.). The restrictions the ALJ found necessary were against 16 reaching overhead, side to side movement of the neck, and working at 17 heights and around dangerous and fast moving machinery. past work, but climbing, he retained balancing, the RFC stooping, to perform kneeling, (AR 18). work with (AR 18). crouching, or (Id.). 18 19 Finally, at step five, the ALJ concluded that, based on Plaintiff s 20 RFC and the testimony of the VE, Plaintiff could perform work as a 21 cashier or an office helper. 22 Plaintiff was not disabled, as defined in the Social Security Act, at 23 any time through the date of the decision. (AR 23). 24 25 26 27 28 11 Accordingly, the ALJ found that (Id.). 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). The court may set aside the 10 11 Substantial evidence is more than a scintilla, but less than a 12 preponderance. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, the court must consider the record as a whole, weighing 16 both 17 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 18 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 19 reasonably support either affirming or reversing that conclusion, the 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-21. evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence To determine whether substantial evidence supports that supports and evidence that detracts from the If the evidence can 22 23 VII. 24 DISCUSSION 25 26 Plaintiff contends the ALJ erred for a number of reasons. First, 27 he claims that the ALJ improperly rejected the opinions of Plaintiff s 28 treating physician concerning Plaintiff s functional status. 12 (Joint 1 Stipulation ( Jt. Stip. ) at 3-4). 2 failed to comply with SSR 96-7p when he did not discuss the side effects 3 of Plaintiff s medication. 4 the 5 physicians concerning the severity of Plaintiff s depression. 6 Stip. at 10-11). 7 question the ALJ posed to the VE did not fully describe Plaintiff s 8 condition. 9 Court disagrees with all of Plaintiff s contentions. ALJ improperly Second, he claims that the ALJ (Jt. Stip. at 8). rejected the opinions Third, he contends that of Plaintiff s treating (Jt. Finally, Plaintiff claims that the hypothetical (Jt. Stip. at 13-15). For the reasons discussed below, the 10 11 A. 12 The ALJ Properly Considered The Treating Physician s Opinion Of Functional Status 13 14 Plaintiff argues that the ALJ erred when he rejected the opinion 15 of Plaintiff s treating physician, Dr. Wong, in determining Plaintiff s 16 RFC. 17 to the medical opinions of two consultative physicians. 18 claim is without merit. (Jt. Stip. at 3-4). He argues that the ALJ gave improper weight Plaintiff s 19 20 Although the treating physician s opinion is entitled to deference, 21 it is not necessarily conclusive as to either the physical condition 22 or the ultimate issue of disability. 23 Admin., 169 F.3d 595, 600 (9th Cir. 1999). 24 doctor s opinion is not contradicted by another doctor, it may be 25 rejected only for clear and convincing reasons. 26 F.3d 821, 830 (9th Cir. 1995) (citing Baxter v. Sullivan, 923 F.2d 1391, 27 1396 (9th Cir. 1991)). 28 contradicted by the opinion of another doctor, the ALJ may reject the Morgan v. Comm r of Soc. Sec. However, if the treating Lester v. Chater, 81 Even when the treating doctor s opinion is 13 1 treating doctor s opinion only by providing specific and legitimate 2 reasons supported by substantial evidence in the record for so doing. 3 Lester, 81 F.3d at 830 (citing Murray v. Heckler, 722 F.2d 499, 502 (9th 4 Cir. 1983)). 5 6 The only difference between Dr. Wong s evaluation of Plaintiff and 7 the RFC found by the ALJ is in the amount of weight Plaintiff could 8 carry and how long he could sit. 9 carrying more than ten pounds or sitting for six hours or more. Dr. Wong restricted Plaintiff from (AR 10 579-80). The ALJ found that Plaintiff could lift and carry twenty 11 pounds occasionally and ten pounds frequently, and could also sit for 12 six hours. 13 records of Drs. Ashley and Angerman. (AR 21-22). 14 Plaintiff and his medical records, Dr. Ashley concluded that Plaintiff 15 could lift up to twenty pounds, with no other restrictions. 16 Dr. 17 Plaintiff s work were from very heavy work, as well as prolonged 18 motions of the cervical spine. (AR 18). Angerman The ALJ supported this finding with the medical concluded that the only necessary After examining (AR 268). restrictions on (AR 360). 19 20 The ALJ recognized that his decision was contrary to that of Dr. 21 Wong, but provided specific reasons why he gave more weight to the 22 opinions of Drs. Ashley and Angerman. 23 agrees, that Dr. Wong s records contain few, if any, objective clinical 24 findings productive of an assessment for less than sedentary work. (AR 25 21). 26 primarily of a standard form with check-off boxes. 27 asked [w]hat medical/clinical finding(s) support your conclusions 28 [about Dr. Wong s Plaintiff s evaluation ability of to The ALJ noted, and the Court Plaintiff s lift 14 weight limitations and consisted (AR 579-82). sit for When extended 1 periods], Dr. Wong only wrote chronic LBP. 2 instructions on the form request that doctors identify the factors that 3 support their assessments (AR 579), Dr. Wong neglected to do so. 4 alone casts doubt on the value of Dr. Wong s opinion, because ALJs are 5 justified in distrusting check-off forms that do not explain the bases 6 for their conclusions. 7 1996)(upholding ALJ s rejection of check-off reports because they 8 lacked explanations for their findings). The ALJ further noted that Dr. 9 Wong appeared to specialize in internal medicine, not orthopedics. (AR 580). Though the This Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 10 22). 11 to prescription refills, with no physical examinations. 12 (AR 91). Dr. Wong s interactions with Plaintiff seem to have been limited (See AR 585- 13 14 In contrast, both Dr. Ashley and Dr. Angerman were orthopedic 15 surgeons. (AR 269, 362). Both reviewed Plaintiff s medical history (AR 16 253-57, 341-58), and performed their own tests on Plaintiff. (AR 260-61, 17 339-41). 18 Dr. Ashley and Dr. Angerman are better qualified to assess and evaluate 19 [Plaintiff s] medical status and functional restrictions. 20 The 21 orthopedics and their direct orthopedic examinations of Plaintiff are 22 all specific and legitimate reasons to give greater weight to Drs. 23 Ashley and Angerman s opinions. 24 RFC on the opinions of Drs. Ashley and Angerman rather than on that of 25 Dr. Wong therefore does not warrant remand. 26 \\ 27 \\ 28 \\ depth Because of this, the ALJ found, and the Court agrees, that and detail of their reports, their (AR 22). specialization in The ALJ s decision to base Plaintiff s 15 1 B. 2 Remand Is Not Required To Determine Plaintiff s Ability To Maintain Employment In Light Of The Side Effects Of His Medication 3 4 Plaintiff argues that the ALJ failed to consider the side effects 5 he experienced as a result of his medications. 6 claims that these side effects, including grogginess and sleepiness, 7 have ramifications on Plaintiff s ability to work and it was error for 8 the ALJ not to discuss them. (Id.) (Jt. Stip. at 8). He This claim is without merit. 9 10 Although the type, dosage, effectiveness, and side effects of any 11 medication taken by the claimant to alleviate his or her pain or other 12 symptoms are factors relevant to a disability determination and should 13 be considered by the ALJ, 20 C.F.R. § 404.1529(c)(3)(iv); see also 14 Social Security Ruling ( SSR ) 96-8p, available at, 1996 WL 374184, a 15 claimant bears the burden of proving that an impairment, including a 16 medication s side effects, is disabling. 17 845, 849 (9th Cir. 1985) (claimant failed to meet burden of proving that 18 an impairment is disabling where he produced no clinical evidence 19 showing that his prescription narcotic use impaired his ability to 20 work). Miller v. Heckler, 770 F.2d Plaintiff has not met his burden in this case. 21 22 The main reference to grogginess in the record appears to be in a 23 progress note from Dr. Wong, listing groggy as a side effect of 24 Plaintiff s medications. (AR 587). That progress note does not discuss 25 the severity of the grogginess or whether it would interfere with 26 Plaintiff s ability to work. 27 having recently taken Soma and Norco at his hearing before the ALJ, and 28 he testified that those (Id.). medications 16 In contrast, Plaintiff reported would not affect him while 1 testifying. 2 week vocational rehabilitation course in 2001, while taking the same 3 medications. 4 hours per day. 5 not prevent him from attending and graduating from this course. (AR 637). (AR 308). (AR 20). Additionally, Plaintiff completed a thirteen The course was five days a week for five 1/2 Whatever side effects he may experience did 6 7 Additionally, there is evidence in the record that Plaintiff has 8 an ongoing alcohol abuse problem. 9 Plaintiff truly experiences grogginess or drowsiness, Plaintiff cannot 10 show that these symptoms are directly attributable to his medications 11 rather than his abuse of alcohol. (AR 599-560). To the extent 12 13 The record, including the medical evidence and Plaintiff s 14 testimony, does not demonstrate that side effects from Plaintiff s 15 medications interfered with his ability to work. Therefore, the ALJ did 16 not err in failing to consider those side effects in his decision. 17 18 C. The ALJ Properly Considered The Treating Physician s Records When 19 He Concluded That Plaintiff Did Not Suffer From A Severe Mental 20 Impairment 21 22 Plaintiff claims that the ALJ erred when he did not consider Dr. 23 Wong s notes when evaluating the severity of his mental impairment. 24 (Jt. Stip. at 10-11). 25 references to anxiety and depression in Dr. Wong s notes. In support of this claim, Plaintiff cites 26 27 28 Dr. Wong s treatment notes contain brief references to depression. (See AR 585-91). Dr. Wong also records Plaintiff s complaints of 17 1 anxiety attacks (AR 586) and an inability to sleep (AR 589). 2 little explanation in Dr. Wong s notes about these symptoms other than 3 to recognize that Plaintiff reported them. There is 4 5 Other doctors examined Plaintiff and evaluated his mental health 6 at the request of Defendant. 7 psychiatrist, diagnosed Plaintiff with an adjustment disorder, but 8 concluded that it was not severe. 9 Plaintiff with ongoing alcohol abuse. Following an examination, Dr. Becraft, a (AR 559). (Id.) He also diagnosed In a consultative 10 neurological exam, Dr. Sarah Maze reported that Plaintiff appeared 11 depressed, but noted that his immediate recall, remote, and recent 12 memory [were] good, and his attention and concentration [were] not 13 impaired. (AR 367). 14 15 The ALJ concluded that the evidence did not show that Plaintiff had 16 a severe mental impairment. 17 Drs. Becraft and Maze, and found that there was no evidence under 18 submission to 19 evidence, the 20 restrictions 21 functioning, mild difficulties in maintaining concentration persistence 22 or pace, and no episodes of decompensation. contradict ALJ in (AR 17). their decided daily He relied on the evaluations of conclusions. that there activities, (Id.). were mild no more difficulties Given this than mild in social (AR 18). 23 As noted in section A, above, the ALJ gave legitimate reasons to 24 25 value Dr. Becraft and Dr. Maze s opinions over Dr. Wong s. As noted by 26 the ALJ, when discussing Drs. Becraft and Maze s reports: no evidence 27 has been submitted which would contradict [their] conclusion[s]. 28 17). (AR While Dr. Wong, an internist, mentioned Plaintiff s complaints, 18 1 he gave no indication regarding the level of severity or how those 2 conditions would affect Plaintiff s ability to work. 3 check-off statement regarding Plaintiff s ability to do work-related 4 activities, he checked off the boxes indicating that Plaintiff had no 5 limitations in his ability to see, hear or speak. 6 similarly checked off the boxes indicating that Plaintiff had no 7 environmental limitations, other than hazards posed by machinery and 8 heights. 9 a result of mental impairments, he could have either prepared a (AR 582). In Dr. Wong s (AR 581). He If Dr. Wong believed Plaintiff had limitations as 10 different form or written comments to that effect. 11 evaluation does not reflect any limitations based upon Plaintiff s 12 alleged mental impairment. Dr. Wong s work 13 14 Plaintiff asserts that these conditions had a significant impact 15 on [Plaintiff s] ability to function . . . [because he] cannot use his 16 imagination or concentrate, (Jt. Stip. at 11), but there is no evidence 17 in the record to support this claim. 18 psychiatric 19 impairment in concentration. 20 complains of mental impairments, he was able to complete a thirteen week 21 vocational course. 22 after he completed the course. evaluations concluded Again, both the neurological and that Plaintiff (AR 367, 570). had mild or no Although Plaintiff Moreover, he continued to attend the school even (AR 308). 23 24 After considering the evidence before him, the ALJ did not err by 25 concluding that Plaintiff s mental impairments were not severe. 26 true that step two of the five step evaluation process is a de minimis 27 test intended to weed out the most minor of impairments. 28 v. Yuckert, 482 U.S. 137, 153-154, 107 S. Ct. 2287, 2299-2300, 96 L. Ed. 19 It is See Bowen 1 2d 119 (1987)(O Connor, J. concurring). 2 not severe only if the evidence establishes a slight abnormality that 3 has no more than a minimal effect on an individual s ability to work. 4 Webb 5 Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001)(the step-two inquiry is 6 a de minimis screening device to dispose of groundless claims)(quoting 7 Smolen v Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). 8 find that a claimant lacks a medically severe impairment or combination 9 of impairments only when his conclusion is clearly established by 10 v. Barnhart, 433 F.3d 683, 686 An ALJ may find an impairment (9th Cir. 2005); Edlund v. [A]n ALJ may medical evidence. Webb, 433 F.3d at 687. 11 12 Nonetheless, the medical evidence here suggested that if Plaintiff 13 suffers from any mental impairment, that impairment is only a slight 14 abnormality with a minimal effect on Plaintiff s ability to work. 15 evaluations of Drs. Maze and Becraft both support this conclusion. 16 Substantial evidence, therefore, supported the ALJ s finding that 17 Plaintiff did not suffer from a severe mental impairment. The 18 19 Even if the ALJ erred, however, in his conclusion regarding the 20 severity of Plaintiff s mental impairment, the error was harmless. 21 Stout v. Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006). Had the ALJ found 22 a severe mental impairment, he would nonetheless have looked to Dr. 23 Becraft and Maze s evaluations to determine what impact, if any, 24 Plaintiff s mental impairment has on his ability to work, because Dr. 25 Wong s report did not include any such limitations. 26 those doctors evaluations, finding no or only mild limitations, would 27 not have significantly altered the 28 20 ALJ s As noted above, conclusions regarding 1 Plaintiff s residual functional capacity. 2 this claim. Remand is not required on 3 4 D. 5 The ALJ Posed A Complete Hypothetical Question To The Vocational Expert 6 7 Plaintiff claims that the ALJ failed to ask the VE a complete and 8 accurate hypothetical question. 9 Plaintiff alleges that the ALJ erroneously failed to include in the 10 hypothetical any mention of the side effect of grogginess Plaintiff 11 reported. 12 limitations due to grogginess in his hypothetical question. 13 645-46). 14 physician clearly stated that [Plaintiff] was experiencing severe side 15 effects from his medication, and these side effects would change the 16 work available for Plaintiff in the national economy. 17 14). (Jt. Stip. at 14). (Jt. Stip. at 13-15). Specifically, The ALJ did not include any functional (See AR Plaintiff claims that this was error, because the treating (Jt. Stip. at Plaintiff s claim does not warrant remand. 18 19 In order for the VE s testimony to constitute substantial evidence, 20 the hypothetical question posed must consider all of the claimant s 21 limitations. 22 However, the ALJ is not required to include limitations for which there 23 was no evidence. 24 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) ( Because the ALJ 25 included all of the limitations that he found to exist, and because his 26 findings were supported by substantial evidence, the ALJ did not err in 27 omitting the other limitations that [the plaintiff] had claimed, but had 28 failed to prove. ). Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995). See Osenbrock, 240 F.3d at 1164-65; see also Rollins 21 1 An ALJ need not incorporate into the hypothetical subjective 2 complaints and alleged limitations that he deems not credible. 3 Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005); Thomas v. 4 Barnhart, 278 F.3d 947, 959-60 (9th Cir. 2002). 5 subsection B, Plaintiff s complaint of grogginess was not well supported 6 by the medical record available to the ALJ. 7 not shown that his alleged drowsiness was the result of medication 8 rather than alcohol abuse. 9 taking his medications on the day of his hearing, he also stated they See As discussed above in In addition, Plaintiff has Finally, even though Plaintiff admitted to 10 would not impact his ability to testify. 11 substantial evidence in the record belies Plaintiff s claims that his 12 medications rendered him groggy, the ALJ did not err by omitting 13 grogginess as a limitation when presenting the hypotheticals to the VE. 14 \\ 15 \\ 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 22 (AR 637-38). Because 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),3 IT IS ORDERED that judgment be entered AFFIRMING the 6 decision of the Commissioner and dismissing this action with prejudice. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 8 Order and the Judgment on counsel for both parties. 9 10 DATED: October 28, 2008. 11 12 ___________/s/__________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 23

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