(SS) Seturnino Vargas v. Commissioner of Social Security, No. 1:2006cv01148 - Document 26 (E.D. Cal. 2008)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 2/5/08: Recommending that Plaintiff's Social Security Complaint be DENIED; and Judgment for Defendant and against Plaintiff, BE ENTERED. Matter 1 REFERRED to Judge O'Neill. Objections to F&R due by 3/10/2008; Reply due 10 COURT DAYS (+3 days if served by mail) after service of the objections. (Hellings, J)
Download PDF
<![CDATA[
(SS) Seturnino Vargas v. Commissioner of Social Security Doc. 26 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SETURNINO VARGAS, 10 Plaintiff, 11 v. 12 MICHAEL J. ASTRUE, Commissioner of Social 13 Security, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:06-cv-001148-LJO-SMS FINDINGS AND RECOMMENDATION RE: PLAINTIFF’S SOCIAL SECURITY COMPLAINT (Doc. 1) 16 Plaintiff is proceeding in forma pauperis with an action 17 seeking judicial review of a final decision of the Commissioner 18 of Social Security (Commissioner) denying Plaintiff’s 19 applications for disability insurance benefits (DIB) pursuant to 20 Title II of the Social Security Act (Act) and supplemental 21 security income (SSI) pursuant to Title XVI of the Act. Plaintiff 22 is represented by counsel. The matter has been referred to the 23 Magistrate Judge pursuant to 28 U.S.C.§ 636(b) and Local Rule 7224 302(c)(15). 25 I. Procedural History 26 In June 2001, Plaintiff applied for disability insurance 27 benefits (DIB) and supplemental security income (SSI), alleging 28 1 Dockets.Justia.com 1 disability since November 1, 1995, primarily based on arthritis 2 and diabetes mellitus. (A.R. 3,1 23, 90-92.) After Plaintiff’s 3 claim was denied initially and on reconsideration, and after a 4 hearing before an administrative law judge (ALJ) on October 7, 5 2002, a partially unfavorable decision issued on December 18, 6 2002, in which it was determined that Plaintiff was disabled as 7 of January 28, 2002, but not before that date. (A.R. 57-61, 628 65, 68-71.) The Appeals Council remanded the matter for a new 9 hearing and decision with directions to obtain updated records 10 from Plaintiff’s treating sources, to obtain an orthopedic 11 consultative examination if necessary, to evaluate medical 12 records, to evaluate Plaintiff’s credibility in light of the 13 additional evidence, and to inquire of a vocational expert (VE) 14 whether the VE’s testimony was consistent with the Dictionary of 15 Occupational Titles. (A.R. 81-83.) 16 On February 3, 2005, a hearing was held before the Honorable 17 James P. Berry. (A.R. 23.) Plaintiff appeared with an attorney 18 and testified in the presence of an interpreter. (A.R. 23.) On 19 April 6, 2005, the ALJ partially denied Plaintiff’s application 20 for benefits, concluding that although Plaintiff could perform a 21 broad range of medium work from November 1995 to October 14, 22 2001, including his past relevant work as a farm laborer, as of 23 October 14, 2001, Plaintiff could not perform his past relevant 24 medium work, and thus he was disabled as of that date and 25 thereafter. (A.R. 23-28.) After the Appeals Council denied 26 Plaintiff’s request for review on June 8, 2006 (A.R. 6-8), 27 1 28 The administrative transcript’s index indicates that the application for SSI was not available for inclusion. (A.R. 4.) 2 1 Plaintiff filed the complaint in this action on August 19, 2006. 2 Briefing commenced on May 3, 2007, with the filing of Plaintiff’s 3 opening brief, and was completed on June 15, 2007, when Defendant 4 filed a brief in opposition. 5 II. Standard and Scope of Review 6 Congress has provided a limited scope of judicial review of 7 the Commissioner's decision to deny benefits under the Act. In 8 reviewing findings of fact with respect to such determinations, 9 the Court must determine whether the decision of the Commissioner 10 is supported by substantial evidence. 42 U.S.C. § 405(g). 11 Substantial evidence means "more than a mere scintilla," 12 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 13 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 14 (9th Cir. 1975). It is "such relevant evidence as a reasonable 15 mind might accept as adequate to support a conclusion." 16 Richardson, 402 U.S. at 401. The Court must consider the record 17 as a whole, weighing both the evidence that supports and the 18 evidence that detracts from the Commissioner's conclusion; it may 19 not simply isolate a portion of evidence that supports the 20 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 21 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). It 22 is immaterial that the evidence would support a finding contrary 23 to that reached by the Commissioner; the determination of the 24 Commissioner as to a factual matter will stand if supported by 25 substantial evidence because it is the Commissioner’s job, and 26 not the Court’s, to resolve conflicts in the evidence. Sorenson 27 v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975). 28 In weighing the evidence and making findings, the 3 1 Commissioner must apply the proper legal standards. Burkhart v. 2 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 3 review the whole record and uphold the Commissioner's 4 determination that the claimant is not disabled if the 5 Commissioner applied the proper legal standards, and if the 6 Commissioner's findings are supported by substantial evidence. 7 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 8 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 9 the Court concludes that the ALJ did not use the proper legal 10 standard, the matter will be remanded to permit application of 11 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 12 Cir. 1987). 13 III. Disability 14 In order to qualify for benefits, a claimant must establish 15 that she is unable to engage in substantial gainful activity due 16 to a medically determinable physical or mental impairment which 17 has lasted or can be expected to last for a continuous period of 18 not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). 19 A claimant must demonstrate a physical or mental impairment of 20 such severity that the claimant is not only unable to do the 21 claimant’s previous work, but cannot, considering age, education, 22 and work experience, engage in any other kind of substantial 23 gainful work which exists in the national economy. 42 U.S.C. 24 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 25 Cir. 1989). The burden of establishing a disability is initially 26 on the claimant, who must prove that the claimant is unable to 27 return to his or her former type of work; the burden then shifts 28 to the Commissioner to identify other jobs that the claimant is 4 1 capable of performing considering the claimant's residual 2 functional capacity, as well as her age, education and last 3 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 4 1273, 1275 (9th Cir. 1990). 5 The regulations provide that the ALJ must make specific 6 sequential determinations in the process of evaluating a 7 disability: 1) whether the applicant engaged in substantial 8 gainful activity since the alleged date of the onset of the 9 impairment, 20 C.F.R. § 404.1520 (2005);2 2) whether solely on the 10 basis of the medical evidence the claimed impairment is severe, 11 that is, of a magnitude sufficient to limit significantly the 12 individual’s physical or mental ability to do basic work 13 activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the 14 basis of medical evidence the impairment equals or exceeds in 15 severity certain impairments described in Appendix I of the 16 regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant 17 has sufficient residual functional capacity, defined as what an 18 individual can still do despite limitations, to perform the 19 applicant’s past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 20 5) whether on the basis of the applicant’s age, education, work 21 experience, and residual functional capacity, the applicant can 22 perform any other gainful and substantial work within the 23 economy, 20 C.F.R. § 404.1520(f). 24 With respect to SSI, the five-step evaluation process is 25 essentially the same. See 20 C.F.R. § 416.920. 26 Here, the ALJ concluded that Plaintiff, who was fifty-five 27 28 2 All references are to the 2005 version of the Code of Federal Regulations unless otherwise noted. 5 1 years old at the time of decision with no formal education and an 2 inability to communicate in English, and who had past relevant 3 work as a farm laborer, had severe impairments of diabetes 4 mellitus and arthritis that did not meet or equal a listed 5 impairment; Plaintiff could perform a broad range of medium work 6 from November 1995 to October 14, 2001, including his past 7 relevant work as a farm laborer; as of October 14, 2001, 8 Plaintiff could not perform his past relevant medium work, and 9 thus he was disabled as of that date and thereafter. (A.R. 2310 28.) 11 IV. Plaintiff’s Subjective Complaints 12 Plaintiff argues that the ALJ inadequately reviewed 13 Plaintiff’s subjective complaints and failed to state specific, 14 convincing reasons for rejecting Plaintiff’s subjective 15 statements. Without specification of precise defects, Plaintiff 16 argues that the ALJ failed to consider all relevant criteria and 17 misstated unspecified testimony. (Brief. p. 6.) 18 The court in Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 19 2007), summarized the pertinent standards for evaluating the 20 sufficiency of an ALJ’s reasoning in rejecting a claimant’s 21 subjective complaints: 22 23 24 25 26 27 28 An ALJ is not “required to believe every allegation of disabling pain” or other non-exertional impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). However, to discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide “ ‘specific, cogent reasons for the disbelief.’ “ Morgan, 169 F.3d at 599 (quoting Lester, 81 F.3d at 834). The ALJ must “cit[e] the reasons why the [claimant's] testimony is unpersuasive.” Id. Where, as here, the ALJ did not find “affirmative evidence” that the claimant was a malingerer, those “reasons for rejecting the claimant's testimony must be clear and convincing.” Id. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 Social Security Administration rulings specify the proper bases for rejection of a claimant's testimony. See S.S.R. 02-1p (Cum. Ed.2002), available at Policy Interpretation Ruling Titles II and XVI: Evaluation of Obesity, 67 Fed.Reg. 57,859-02 (Sept. 12, 2002); S.S.R. 96-7p (Cum. Ed.1996), available at 61 Fed.Reg. 34,483-01 (July 2, 1996). An ALJ's decision to reject a claimant's testimony cannot be supported by reasons that do not comport with the agency's rules. See 67 Fed.Reg. at 57860 (“Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, ... and are to be relied upon as precedents in adjudicating cases.”); see Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir.1998) (concluding that ALJ's decision at step three of the disability determination was contrary to agency regulations and rulings and therefore warranted remand). Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and “unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment.” Fair, 885 F.2d at 603; see also Thomas, 278 F.3d at 958-59. 14 The factors to be considered in weighing credibility are set 15 forth in the regulations and pertinent Social Security rulings. 16 They include the claimant’s daily activities; the location, 17 duration, frequency, and intensity of the claimant’s pain or 18 other symptoms; factors that precipitate and aggravate the 19 symptoms; the type, dosage, effectiveness, and side effects of 20 any medication the claimant takes or has taken to alleviate the 21 symptoms; treatment, other than medication, the person receives 22 or has received for relief of the symptoms; any measures other 23 than treatment the claimant uses or has used to relieve the 24 symptoms; and any other factors concerning the claimant’s 25 functional limitations and restrictions due to pain or other 26 symptoms. 20 C.F.R. §§ 404.1529, 416.929; S.S.R. 96-7p. 27 With respect to the course of analysis directed by the 28 7 1 regulations, the ALJ is first obligated to consider all symptoms 2 and the extent to which the symptoms can reasonably be accepted 3 as consistent with the objective medical evidence and other 4 evidence. 20 C.F.R. §§ 404.1529(a), 416.929(a). Once it is 5 determined that there is a medically determinable impairment that 6 could reasonably be expected to produce the claimant’s symptoms, 7 the ALJ must then evaluate the intensity and persistence of the 8 symptoms to determine how the symptoms limit the capacity for 9 work. §§ 404.1529(b), (c); 416.929(b), (c). The ALJ will consider 10 all available evidence. To the extent that the claimant’s 11 symptoms can be reasonably accepted as consistent with the 12 objective medical evidence and other evidence, the symptoms will 13 be determined to diminish the claimant’s capacity for basic work 14 activities. §§ 404.1529(c)(4); 416.929(c)(4). A claimant’s 15 statements will not be rejected solely because unsubstantiated by 16 the available objective medical evidence. §§ 404.1529(c)(2); 17 416.929(c)(2). 18 Further, the pertinent Social Security Ruling provides in 19 pertinent part that an ALJ has an obligation to articulate the 20 reasons supporting the analysis: 21 22 ...When evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual's statements. 23 24 25 26 27 28 The finding on the credibility of the individual's statements cannot be based on an intangible or intuitive notion about an individual's credibility. The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision. It is not sufficient to make a conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." It is also not enough for the adjudicator simply to recite the factors that are described in the 8 1 2 3 4 5 6 regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. This documentation is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision. 7 S.S.R. 96-7p at 4. 8 Here, the ALJ noted Plaintiff’s testimony, including his 9 complaint that he quit work in 1995 because of pain, which had 10 improved somewhat in all his joints but remained in his bilateral 11 ankles, elbows, and shoulders; he experienced stiffness in the 12 hand and wrist; his blood sugar levels were better, but he had 13 blurred vision for an hour or two daily and low energy; and he 14 had to use a cane four days a week, could lift ten pounds, stand 15 three hours, and sit one to two hours. (A.R. 25-26.) 16 The ALJ expressly concluded that Plaintiff’s subjective 17 complaints before October 14, 2001, were not entirely consistent 18 with the medical evidence because there were significant gaps in 19 treatment; however, after that date, consistent objective medical 20 evidence established the presence of impairments that could 21 reasonably be expected to produce the symptoms and limitations 22 alleged. Thus, Plaintiff’s subjective complaints had been given 23 substantial weight in evaluating his RFC along with the findings 24 of Dr. Chang, a consultative examiner. (A.R. 26.) The ALJ had 25 considered the medical opinions and stated that he gave greater 26 weight to Dr. Chang’s opinion of a light RFC than to the state 27 agency physicians’ assessment of a more medium work capacity 28 because of the additional findings of Dr. Chang. (A.R. 26.) The 9 1 ALJ also referred to Dr. Lugo’s assessments of Plaintiff’s 2 disability, which in April and June 2001 were for temporary 3 disability only (two months in April, and two months in June), 4 and which did not indicate preclusion from all work activity or 5 specify any work-related limitations or any medical evidence to 6 support any limitation. (A.R. 24.) The ALJ rejected the opinion 7 of consulting examiner Dr. Gonzales, whose examination of 8 Plaintiff in August 2001 revealed only some discomfort with 9 ambulation and mild tenderness to palpation of the knees, and 10 some decreased handgrip and shoulder strength, and decreased 11 elbow, wrist, hip, and knee flexion and extension, but an absence 12 of joint effusions or joint deformities; the ALJ stated that Dr. 13 Gonzales’ assessment of capacity to lift or carry ten pounds, 14 stand and walk two hours, and sit six hours, with occasional 15 bending, stooping, and crouching was overly restrictive because 16 the examination did not reveal any significant physical 17 limitations. (A.R. 25.) The ALJ noted that Dr. Gonzales relied 18 mostly on Plaintiff’s subjective complaints. (Id.) 19 Contrary to Plaintiff’s assertion, the ALJ’s summary of 20 Plaintiff’s testimony concerning his subjective complaints, 21 although not completely accurate,3 was essentially fair and 22 correct. (A.R. 25-26, 299-306.) 23 Likewise, the ALJ expressly stated reasons. He discounted 24 Plaintiff’s subjective complaints during the time before October 25 3 26 27 28 Plaintiff complained of pain in all his joints; he testified he could stand and walk longer than thirty minutes each, with the longest standing time being an hour or forty minutes, or an hour and one-half, with an ability to walk longer yet with difficulty; he had to rest his hands after using them for about fifteen minutes; his blurry vision lasted about an hour or sometimes less, but happened almost every day; he could walk about four hundred meters; he could lift about fourteen pounds but did not know how much weight he could carry; he could sit an hour or so; his medications helped him, but he had no side-effects. (A.R. 299, 300-302, 304-06.) 10 1 14, 2001, because they were inconsistent with the medical record 2 of treatment, and because they were inconsistent with the medical 3 experts’ opinions as to the extent of Plaintiff’s functional 4 capacities and limitations. (A.R. 26.) 5 It is established that in rejecting subjective complaints, 6 it is permissible to rely upon opinions of physicians concerning 7 the nature, severity, and effect of the symptoms of which the 8 claimant complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 9 Cir. 2002). Included in the factors that an ALJ may consider in 10 weighing a claimant’s credibility are the claimant’s reputation 11 for truthfulness; inconsistencies either in the claimant’s 12 testimony or between the claimant’s testimony and the claimant’s 13 conduct, daily activities, or work record; and testimony from 14 physicians and third parties concerning the nature, severity, and 15 effect of the symptoms of which the claimant complains. Thomas v. 16 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). The ALJ may 17 consider whether the Plaintiff’s testimony is believable or not. 18 Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). Although 19 the inconsistency of objective findings with subjective claims 20 may not be the sole reason for rejecting subjective complaints of 21 pain, Light v. Chater, 119 F.3d 789, 792 (9th Cir. 1997), it is 22 one factor which may be considered with others, Moisa v. 23 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Morgan v. 24 Commissioner 169 F.3d 595, 600 (9th Cir. 1999). It is appropriate 25 for an ALJ to draw an inference that Plaintiff did not have 26 ongoing pain based on a general lack of medical care between two 27 periods of treatment. Flaten v. Secretary of Health & Human 28 Services, 44 F.3d 1453, 1464 (9th Cir. 1995) (gap between two 11 1 surgeries). 2 Substantial evidence supported the ALJ’s finding that there 3 was a gap in treatment before the date on which disability was 4 found to commence. Plaintiff does not dispute that there was no 5 evidence of any significant treatment after October 26, 1996, 6 until approximately April 2001. As the ALJ detailed in the 7 decision (A.R. 24-26), Plaintiff’s left knee was injured in 8 November 1995; x-rays showed only very minimal degenerative 9 changes with probable internal derangement; it was diagnosed as 10 effusion and treated conservatively with Naprosyn, home exercise, 11 and a knee support, and it improved with Prednisone in February 12 1996. (A.R. 25, 223, 192-93, 281.) Further, Plaintiff was 13 diagnosed with diabetes mellitus in December 1995, but it was 14 under good control. (A.R. 223.) Plaintiff’s arthritis clinically 15 improved and was stable according to progress notes in 1996. 16 (A.R. 252-53, 275, 277.) 17 In December 1995, Dr. Smith granted Plaintiff disability 18 first only to December 11, 1995, and then again only to January 19 15, 1996, and he did not state any functional limitations or 20 restrictions pertinent to Plaintiff. (A.R. 186, 179.) 21 In April 2001, Dr. Lugo noted that Plaintiff wanted 22 disability to be sent to SSI, but Dr. Lugo extended Plaintiff’s 23 disability for two months only. (A.R. 126.) Plaintiff suffered 24 poor diabetes control in May 2001, and medicine compliance was 25 noted as part of the plan. (A.R. 125.) In June 2001, Plaintiff’s 26 general relief disability was extended only two months. (A.R. 27 122.) There were no work-related or other limitations placed on 28 Plaintiff in connection with the extensions of temporary 12 1 disability. 2 Further, in August 2001, Dr. Gilbert Gonzales, Jr., 3 performed a comprehensive internal medical evaluation and found 4 some discomfort with ambulation, mild tenderness to palpation on 5 the medial aspect of the knees, but no joint effusions or 6 deformities; Plaintiff had decreased hand grip and shoulder 7 strength at 4/5 and decreased elbow, wrist, hip, and knee flexion 8 and extension; the sensory exam was within normal limits, and 9 reflexes were +2 in the bilateral upper and lower extremities. 10 Although Dr. Gonzales limited Plaintiff’s RFC, the record 11 supports the ALJ’s conclusion that the examination did not reveal 12 any significant physical limitations. (A.R. 129-33.) 13 The ALJ also detailed the evidence in September and November 14 2001, and thereafter, revealing increased pain in the knee, leg, 15 and shoulder; worsening lower extremity weakness in 2002 and poor 16 control of diabetes in December 2003; and Dr. Chang’s orthopedic 17 consultative examination in September 2003, which included 18 findings of decreased range of motion in the cervical and lumbar 19 spine, crepitus at the bilateral knees, tenderness to palpation 20 in multiple aspects of the knees and bilateral shoulders, 21 decreased grip and muscle strength of the hands, shoulders, and 22 elbows, with an RFC for essentially light work assessed with some 23 postural and manipulative limitations. (A.R. 25, 232-35.) 24 The Court concludes that the ALJ cited clear and convincing 25 reasons for rejecting Plaintiff’s subjective complaints of pain 26 to the extent alleged for the pertinent period, and that the 27 ALJ’s reasons were properly supported by the record and 28 sufficiently specific to allow this Court to conclude that the 13 1 ALJ rejected the claimant's testimony on permissible grounds and 2 did not arbitrarily discredit Plaintiff’s testimony. 3 V. Severity of Impairment 4 Plaintiff argues that the ALJ erred in not finding that 5 Plaintiff’s left knee internal derangement was severe between 6 December 31, 1999 (the date Plaintiff was last insured) and 7 October 2001 because the evidence reflected that Plaintiff had 8 knee effusion, tenderness, and a need for a knee support. (A.R. 9 189-92.) Further, the ALJ erred in ignoring Plaintiff’s obesity 10 and not finding that it was severe. (A.R. 130.) Finally, the ALJ 11 should have attempted to re-contact the treating physician to 12 clarify an opinion regarding disability. 13 With respect to Plaintiff’s knee condition, the records 14 noted by Plaintiff are from Dr. Larsen at Valley Family Health 15 Center from November 1995, and Dr. Smith in December 1995. (A.R. 16 182-93.) The records are only partially legible; the copies 17 affirmatively indicate that they are the best copies possible. 18 Dr. Smith in December found mild tenderness, full extension, and 19 only some limits of flexion; an MRI was ordered. (A.R. 187.) Dr. 20 Smith put Plaintiff on disability for one week in early December 21 1995 with medication and an elastic knee brace; disability was 22 extended for one month until January 15, 1996. (A.R. 179, 186.) 23 Plaintiff was suffering increasing pain; there was an effusion. 24 (A.R. 186.) 25 At step two, the Secretary considers if claimant has "an 26 impairment or combination of impairments which significantly 27 limits his physical or mental ability to do basic work 28 activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). This is 14 1 referred to as the "severity" requirement and does not involve 2 consideration of the claimant's age, education, or work 3 experience. Id. The step-two inquiry is a de minimis screening 4 device to dispose of groundless claims. Bowen v. Yuckert, 482 5 U.S. 153-54 (1987). The Secretary is required to "consider the 6 combined effect of all of the individual's impairments without 7 regard to whether any such impairment, if considered separately, 8 would be of [sufficient medical] severity." 42 U.S.C. § 9 1382c(a)(3)(F). 10 Basic work activities include the abilities and aptitudes 11 necessary to do most jobs, such as physical functions of walking, 12 standing, sitting, lifting, pushing, pulling, reaching, carrying, 13 or handling; capacities for seeing, hearing, and speaking; 14 understanding, carrying out, and remembering simple instructions; 15 use of judgment; responding appropriately to supervision, co16 workers and usual work situations; and dealing with changes in a 17 routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b). 18 An impairment or combination thereof is not severe when 19 medical evidence establishes only a slight abnormality or a 20 combination of slight abnormalities which would have no more than 21 a minimal effect on an individual's ability to work. An 22 impairment is not severe if it does not significantly limit a 23 claimant’s physical or mental ability to do basic work 24 activities. 20 C.F.R. §§ 404.1521(a), 416.921(a); Soc. Sec. 25 Ruling 85-28; Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 26 1996). 27 The evidence on which Plaintiff relies tends to show some 28 limitation of function for a short period of time during which 15 1 Plaintiff was considered temporarily disabled by his treating 2 physicians, but the extent of the apparently temporary 3 dysfunction was unclear because the treating sources did not 4 assign specific functional limitations to the Plaintiff at that 5 time or make any reference to specific clinical findings or tests 6 that supported any precise limitations. To the extent that 7 evidence is inconsistent, conflicting, or ambiguous, it is the 8 responsibility of the ALJ to resolve any conflicts and ambiguity. 9 Morgan v. Commissioner, 169 F.3d 595, 603 (9th Cir. 1999). Because 10 the ALJ has authority to interpret ambiguous medical opinions and 11 to resolve conflicts, Matthews v. Shalala, 10 F.3d 678, 680 (9th 12 Cir. 1993), the Court must defer to the ALJ’s decision. 13 Here, the ALJ took a longitudinal view of Plaintiff’s 14 overall treatment, which reflected a gap of about five years with 15 respect to treatment or any restriction due to Plaintiff’s 16 condition. Further, the ALJ considered the development of 17 Plaintiff’s knee symptoms and reasonably inferred, based on more 18 complete and comprehensive data and expert opinions, that 19 Plaintiff’s condition worsened towards the end of 2001, and at 20 that point Plaintiff’s RFC changed. It is established that a more 21 recent opinion may be entitled to greater deference than an older 22 opinion, as may an opinion which describes or considers more 23 significant medical events or conditions. Orn v. Astrue, 495 F.3d 24 625, 633-34 (9th Cir. 2007). Regulations provide that generally 25 more weight is given by the Social Security Administration (SSA) 26 to opinions from treating sources because they are likely to be 27 most able to provide a detailed, longitudinal picture of a 28 claimant’s medical impairments and may bring a unique perspective 16 1 to the medical evidence that cannot be obtained from the 2 objective medical findings alone or from reports of individual 3 examinations, such as consultative examinations or brief 4 hospitalizations. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). 5 Although the ALJ here relied on sources other than treating 6 physicians, he appropriately evaluated the expert opinions 7 concerning Plaintiff’s capacities over an extended period of 8 time. Although Plaintiff used a brace and took medications, the 9 evidence supported the ALJ’s implicit conclusion that any knee 10 effusion was of limited duration and not severe. 11 With respect to Plaintiff’s claim that the ALJ ignored 12 Plaintiff’s obesity, Plaintiff points to Dr. Gonzales’ 13 consultative comprehensive internal medicine examination of 14 August 2001, where Dr. Gonzales stated that Plaintiff, who 15 weighed 171 pounds and was five feet four inches in height, was 16 overweight but in no acute distress. (A.R. 130.) The limitations 17 addressed by Dr. Gonzales were Plaintiff’s slight weakness of the 18 extremities, difficulty with ambulation and standing or walking, 19 and his use of a cane, which Dr. Gonzales opined affected his 20 ability to stand, walk, lift and carry, and take certain 21 postures, although the physical examination was essentially 22 normal. (A.R. 132.) Plaintiff does not point to any evidence of 23 any functional limitations having been assigned to Plaintiff as a 24 result of his being overweight. Further, the ALJ considered all 25 the pertinent expert opinions concerning Plaintiff’s limitations 26 and appropriately evaluated them and explained the weight he put 27 on them; the ALJ relied on additional findings and opinions in 28 rejecting Dr. Gonzales’ more restrictive RFC. 17 1 The present case in not one in which the ALJ overlooked any 2 limitations of function discretely attributed to obesity. This 3 case is unlike Celaya v. Halter, 332 F.3d 1177 (9th Cir. 2003), in 4 which it was held that the ALJ erred in not considering obesity. 5 Here, in contrast, Plaintiff had counsel at the hearing and 6 throughout the administrative and judicial process; there is no 7 evidence that Plaintiff’s weight was close to listing criteria; 8 and Plaintiff had the opportunity to obtain evaluation and 9 treatment from multiple sources who considered Plaintiff’s total 10 physical condition and opined concerning the accompanying 11 functional limitations, so there was no need to develop the 12 record. The record does not reflect functional limitations as a 13 result of Plaintiff’s weight, and Plaintiff has not presented 14 such evidence or attempted to establish equivalence to a listing. 15 Under such circumstances, it is not reversible error not to 16 consider obesity at step two of the sequential analysis. Burch v. 17 Barnhart, 400 F.3d 676, 682-84 (9th Cir. 2005). In addition, there 18 is no error at step three where, as here, there is no evidence 19 that Plaintiff’s weight condition met or medically equaled the 20 pertinent listing, and further, Plaintiff does not propound a 21 theory as to how the impairments combined to equal a listing. Id. 22 at 682-83. Finally, there is no error at step five where the ALJ 23 considers all the pertinent evidence regarding Plaintiff’s 24 functional limitations and formulates Plaintiff’s RFC pursuant to 25 the correct legal framework. Burch v. Barnhart, 400 F.3d at 68326 84. 27 Accordingly, the Court concludes that the ALJ did not err 28 with respect to severity findings concerning Plaintiff’s knee or 18 1 weight conditions. 2 Further, with respect to Plaintiff’s contention that it was 3 necessary for the ALJ to re-contact the treating physician, an 4 ALJ is required to re-contact a doctor only if the doctor's 5 report is ambiguous or insufficient for the ALJ to make a 6 disability determination. 20 C.F.R. §§ 404.1512(e), 416.912(e); 7 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). The ALJ, 8 with support in the record, proceeded to determine Plaintiff’s 9 disability status and implicitly found the evidence adequate to 10 make a determination regarding Plaintiff’s disability. The Court 11 accordingly concludes that the ALJ did not have a duty to re12 contact Plaintiff’s treating physician to clarify the earlier 13 disability opinions. 14 VI. Plaintiff’s RFC 15 Plaintiff argues that the RFC assigned to Plaintiff by the 16 ALJ was not supported by substantial evidence; the ALJ did not 17 review the evidence that was favorable to Plaintiff. 18 Social Security regulations define residual functional 19 capacity as the "maximum degree to which the individual retains 20 the capacity for sustained performance of the physical-mental 21 requirements of jobs." Reddick v. Chater, 157 F.3d 715, 724 (9th 22 Cir. 1998) (citing 20 C.F.R. 404, Subpt. P, App. 2 § 200.00(c) 23 and Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995)). The 24 Commissioner must evaluate the claimant's "ability to work on a 25 sustained basis." Id. (citing 20 C.F.R. § 404.1512(a)); Lester, 26 81 F.3d at 833); see 20 C.F.R. § 416.945. A “regular and 27 continuing basis” means eight hours a day, five days a week, or 28 an equivalent work schedule. S.S.R. 96-8p at 1, 2. The process 19 1 involves an assessment of physical abilities and then of the 2 nature and extent of physical limitations with respect to the 3 ability to engage in work activity on a regular and continuing 4 basis. 20 C.F.R. § 404.1545(b). In assessing a claimant’s RFC, it 5 is necessary to consider the limiting effects of all the 6 claimants impairments, even those that are not severe. 20 C.F.R. 7 § 404.1545(a), (e); 20 C.F.R. § 416.945(a), (e); Soc. Sec. Ruling 8 96-8p at 4; Reddick v. Chater, 157 F. 3d 715, 724 (9th Cir. 1998) 9 (failure to consider non-exertional factor of fatigue that could 10 affect stamina); Beecher v. Heckler, 756 F.2d 693, 694-95 (9th 11 Cir. 1985) (failure to consider a psychiatrist’s report regarding 12 a mental impairment). The ALJ must consider all factors that 13 might have a significant impact on an individual's ability to 14 work, including the side effects of medications as well as 15 subjective evidence of pain; it is improper to focus on a single 16 disease when other significant conditions exist. Varney v. 17 Secretary of HHS, 846 F.2d 581, 585 (9th Cir.), relief modified, 18 859 F.2d 1396 (1988). 19 The pertinent standards for evaluation of expert medical 20 opinions have been recently summarized: 21 22 23 24 25 26 27 28 The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Lester [v. Chater, 81 F.3d 821, 830 (9th Cir.1995) (as amended).] Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons supported by substantial evidence in the record. Id. (internal quotation marks omitted). Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing “specific and legitimate reasons” supported by substantial evidence in the record. Id. at 830, quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 20 1 2 3 stating his interpretation thereof, and making findings. Magallanes [v. Bowen, 881 F.2d 747, 751 (9th Cir.1989).] The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988). 4 5 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998); accord Thomas, 278 F.3d at 957; Lester, 81 F.3d at 830-31. 6 Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 7 Here, the ALJ explained his reasoning in concluding that 8 Plaintiff had a RFC for essentially medium work until October 14, 9 2001. (A.R. 25, 27.) 10 The ALJ considered Dr. Lugo’s granting two-month periods of 11 temporary disability to Plaintiff in April and June 2001, and he 12 further considered Plaintiff’s diabetes having been in poor 13 control with a need for Plaintiff to take diabetic medication 14 consistently. (A.R. 24.) The ALJ reasonably interpreted the 15 records as reflecting temporary disability only; further, 16 substantial evidence supports the ALJ’s finding that Dr. Lugo did 17 not indicate a permanent, total work disability and did not 18 specify work-related limitations or any medical evidence to 19 support such limitations. (A.R. 24, 122-26.) These factors are 20 appropriately considered and constitute specific and legitimate 21 reasons. An ALJ may reject a treating physician’s opinion that is 22 brief and conclusionary in form with little in the way of 23 clinical findings to support its conclusion. Magallanes v. Bowen, 24 881 F.2d 747, 751 (9th Cir. 1989). Further, the ultimate question 25 of whether or not a claimant is disabled is entrusted to the ALJ, 26 who need not accept a medical opinion on such an issue. 27 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Finally, 28 21 1 the ALJ is entitled to draw inferences logically flowing from the 2 evidence. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). 3 The ALJ adverted to the opinion of consulting examiner Dr. 4 Gonzales but put little weight on his limitations of 5 lifting/carrying ten pounds, standing and walking two hours, and 6 only occasional bending and stooping because there were no 7 significant physical limitations in his examination, and it 8 appeared that Dr. Gonzales relied mostly on Plaintiff’s 9 subjective complaints. (A.R. 25.) Substantial evidence supports 10 this conclusion because Dr. Gonzales noted that Plaintiff’s 11 physical examination was essentially normal with respect to range 12 of motion; Plaintiff’s systems were within normal limits; there 13 was mild tenderness in the knees, greater on the right; strength 14 in all areas tested was only slightly diminished at 4/5; 15 Plaintiff was able to move with a widened stance and short steps 16 without a single-point cane, but had some difficulty and/or pain 17 doing so. (A.R. 130-32.). It was within the appropriate scope of 18 the ALJ’s determination to conclude that such severe limitations 19 based on only somewhat limited motor strength and Plaintiff’s use 20 of a cane were not justified by significant physical limitations. 21 Greater weight will be given to opinions based on or supported by 22 relevant evidence, such as medical signs and laboratory findings. 23 20 C.F.R. § 404.1527(d)(3); 20 C.F.R. § 416.927(d)(3). 24 Likewise, the ALJ concluded that the doctor was relying on 25 Plaintiff’s subjective complaints as distinct from discrete, 26 objective clinical findings. (A.R. 25.) Where the record supports 27 an ALJ’s rejection of the claimant’s credibility as to subjective 28 complaints, the ALJ is free to disregard a doctor’s opinion that 22 1 was premised upon the claimant’s subjective complaints. 2 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 3 Further, the ALJ considered the opinions of the state agency 4 medical consultants who concluded on October 14, 2001, and 5 January 28, 2002, that Plaintiff retained the RFC to lift and/or 6 carry fifty pounds occasionally and twenty-five pounds frequently 7 and stand, walk and sit six hours in an eight-hour workday with 8 no frequent forceful pushing and pulling of the lower left 9 extremity and with only occasional kneeling, crawling, and 10 climbing of ladders, ropes, and scaffolds. (A.R. 26, 141-48, 15411 63.) The ALJ expressly concluded that at the time the opinions 12 were rendered, they were consistent with the objective medical 13 evidence and were entitled to significant weight. (A.R. 26.) 14 The first state agency medical consultant, Dr. Lavanya 15 Bobba, explained that she considered the consultant’s limits of 16 lifting ten pounds and standing and walking two hours to be 17 unsupported by the minimal findings; the range of motion tests 18 and well as motor strength tests were based on effort, and the 19 findings and x-rays did not support such restrictions; Dr. Bobba 20 believed that there was no medical indication for an assistive 21 device, and a medium RFC with limited kneeling was more 22 appropriate. (A.R. 148.) 23 The second state agency medical consultant also considered 24 the consultive examiner’s limit to sedentary work but concluded 25 that the objective findings did not support the restriction; the 26 x-ray of the knee was within normal limits, and the use of the 27 case was not shown to be necessary for ambulation; hence lifting 28 and carrying were not as restricted as the consulting examiner 23 1 opined. (A.R. 160.) 2 The ALJ concluded: 3 The Administrative Law Judge finds that, reasonably considering the claimant’s subjective complaints in light of the minimal objective physical findings, at the time the opinions of the state agency medical consultants were consistent with the objective medical evidence and were entitled to significant weight. However, new evidence from consultative examiner Dr. Chang who concluded that the claimant could perform light work is given greater weight. Therefore, I adopt Dr. Chang’s limitations. 4 5 6 7 8 (A.R. 26.) The ALJ’s reliance on the opinions of the state agency 9 physicians as of the time the opinions were rendered was based on 10 substantial evidence. The opinion of a nontreating, nonexamining 11 physician can amount to substantial evidence as long as it is 12 supported by other evidence in the record, such as the opinions 13 of other examining and consulting physicians, which are in turn 14 based on independent clinical findings. Andrews v. Shalala, 53 15 F.3d 1035, 1041 (9th Cir. 1995). 16 The ALJ considered and put great weight on the opinion of 17 consulting orthopedic examiner Dr. Chang, who examined Plaintiff 18 in September 2003. (A.R. 25, 232-35.) Dr. Chang considered 19 Plaintiff’s multiple joint pain involving his shoulders, knees, 20 back, and neck. Plaintiff reported no physical therapy, surgery, 21 or injections. Dr. Chang recorded antalgic gait with difficulty 22 with walking on the toes and heels, reduced range of motion in 23 the cervical and lumbar spine with mild tenderness to percussion 24 over the posterior cervical paraspinal muscles, and reduced 25 motion in the shoulders and knees; straight leg raising was 26 negative to eighty degrees bilaterally without pain; there was 27 crepitus at bilateral knees with tenderness to palpation there 28 24 1 and at the shoulders; grip strength was 4/5 bilaterally, 2 bilateral shoulder muscle strength was 4+/5, elbows 4/5, and hip 3 and knee flexors and extensors were 5-/5; muscle bulk and tone 4 were normal and without atrophy, and sensation was normal. The 5 impression was multiple joint pains likely from osteoarthritis. 6 Dr. Chang opined that Plaintiff had the RFC to perform light work 7 (lift and carry twenty pounds occasionally and ten pounds 8 frequently, stand and walk six hours out of eight with normal 9 breaks), sit without restriction, with only occasional kneeling, 10 squatting, climbing stairs, handling, fingering, pushing and 11 pulling, and no repetitive bending and heavy lifting. (A.R. 235.) 12 The ALJ expressly put greater weight on this opinion because 13 it was new, or recent, and it reflected the developing status of 14 Plaintiff’s condition. (A.R. 26.) The ALJ noted the consistent 15 evidence of worsening symptoms, including progress reports in 16 September and November 2001 reflecting increasing pain in the 17 right knee and leg, and imaging studies reflecting suspicion of 18 joint effusion and the presence of a cyst in the right head of 19 the humerous; he also noted reports in June 2002 of increased 20 arthritis in all extremities with worsening lower extremity 21 weakness for four months. (A.R. 25, 136-37, 151-52, 174-75.) 22 Substantial evidence in the form of records of Plaintiff’s 23 treating sources supports the ALJ’s conclusion that the 24 longitudinal medical record reflected worsening symptoms and 25 increasing restrictions around the pertinent time. 26 Thus, the ALJ properly assessed Plaintiff’s RFC, which was 27 supported by substantial evidence. Plaintiff’s RFC before October 28 14, 2001, was a medium RFC, and thus Plaintiff could perform his 25 1 past relevant work, which a vocational expert (VE), Ms. Chandler, 2 had previously testified was medium, unskilled work which 3 Plaintiff could perform with a medium RFC, but not with the light 4 RFC which the ALJ assessed as of October 14, 2001. (A.R. 308-09.) 5 The ALJ thus properly concluded that given Plaintiff’s age, 6 education, and work experience and his RFC after October 14, 7 2001, Plaintiff was then disabled pursuant to 20 C.F.R., Part 8 404, Subpt. P, App. 2, Rule 202.09. 9 Plaintiff complains of times when Plaintiff’s diabetes was 10 poorly controlled. However, later evidence from 2004 revealed 11 that Plaintiff had been checking his blood sugar every other day 12 and his diabetes was well controlled. (A.R. 263.) Plaintiff 13 admitted at hearing that his doctor said that the blood 14 monitoring revealed that Plaintiff’s diabetes was getting better. 15 (A.R. 303-04.) 16 VII. Recommendation 17 Pursuant to the foregoing analysis, it is concluded that 18 Plaintiff’s arguments should be rejected. The ALJ’s decision was 19 reached by the use of proper legal standards and is supported by 20 substantial evidence. 21 Accordingly, it IS RECOMMENDED that 22 1. Plaintiff’s social security complaint BE DENIED; and 23 2. Judgment for Defendant Michael J. Astrue, Commissioner of 24 Social Security, and against Plaintiff Seturnino Vargas, BE 25 ENTERED. 26 This report and recommendation is submitted to the United 27 States District Court Judge assigned to the case, pursuant to the 28 provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 26 1 Local Rules of Practice for the United States District Court, 2 Eastern District of California. Within thirty (30) days after 3 being served with a copy, any party may file written objections 4 with the court and serve a copy on all parties. Such a document 5 should be captioned “Objections to Magistrate Judge’s Findings 6 and Recommendations.” Replies to the objections shall be served 7 and filed within ten (10) court days (plus three days if served 8 by mail) after service of the objections. The Court will then 9 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 10 (b)(1)(C). The parties are advised that failure to file 11 objections within the specified time may waive the right to 12 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 13 1153 (9th Cir. 1991). 14 IT IS SO ORDERED. 15 Dated: icido3 16 February 5, 2008 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 27
]]>
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.
