(SS) Garth Noli Crane v. Commissioner of Social Security, No. 1:2007cv00967 - Document 22 (E.D. Cal. 2009)

Court Description: DECISION AND ORDER DENYING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 1 ), ORDER Directing The Entry Of Judgment For Defendant Michael J. Astrue, Commissioner Of Social Security, And Against Plaintiff Garth Noli Crane, signed by Magistrate Judge Sandra M. Snyder on 4/6/2009. CASE CLOSED.(Scrivner, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 GARTH NOLI CRANE, 11 Plaintiff, 12 v. 13 14 MICHAEL J. ASTRUE, Commissioner of Social Security, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:07-cv-00967-SMS DECISION AND ORDER DENYING PLAINTIFF S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF GARTH NOLI CRANE 17 18 Plaintiff, Garth Noli Crane, is proceeding in forma pauperis 19 and pro se with an action in which he seeks judicial review of a 20 final decision of the Commissioner of Social Security 21 (Commissioner) denying Plaintiff s application for benefits. 22 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to 23 the jurisdiction of the Magistrate Judge to conduct all further 24 proceedings, including the entry of a final judgment.1 Pending 25 before the Court are the parties briefs, which have been 26 submitted without oral argument to the Honorable Sandra M. 27 1 28 On November 21, 2007, District Judge Anthony W . Ishii ordered the case assigned to the undersigned Magistrate Judge for all purposes. 1 1 Snyder, United States Magistrate Judge. 2 I. Procedural History 3 Plaintiff, who was born on April 30, 1962, protectively 4 filed an application for Disability Insurance Benefits (DIB) on 5 June 1, 2004, alleging disability commencing on December 26, 6 1985, due to pain and weakness in the lower back and left leg, 7 nerve damage, stiffness and cramps from walking even short 8 distances due to an injury on the job, and two resulting back 9 surgeries. (A.R. 17, 62-64, 68-70.) 10 After his claim was denied initially and on reconsideration, 11 Plaintiff appeared with counsel and testified at a hearing before 12 the Honorable Patricia Leary Flierl, Administrative Law Judge 13 (ALJ) of the Social Security Administration (SSA), held on May 14 12, 2006. (A.R. 24-26, 17, 22, 161-88.) On September 21, 2006, 15 the ALJ denied Plaintiff s claim. (A.R. 17-22.) After the Appeals 16 Council denied Plaintiff s request for review on April 5, 2007, 17 Plaintiff filed the action here on July 6, 2007. (A.R. 7-9.) 18 Briefing commenced on May 16, 2008, with the filing of 19 Plaintiff s opening brief, and it concluded on August 8, 2008, 20 with the filing of Plaintiff s reply to Defendant s opposition. 21 Plaintiff had a period of disability from December 1, 1985, 22 to April 1, 2003, based on complications from his back surgery, 23 but he lost the benefits when he went to jail. (A.R. 76, 17.) 24 II. Standard and Scope of Review 25 Congress has provided a limited scope of judicial review of 26 the Commissioner's decision to deny benefits under the Act. In 27 reviewing findings of fact with respect to such determinations, 28 the Court must determine whether the decision of the Commissioner 2 1 is supported by substantial evidence. 42 U.S.C. § 405(g). 2 Substantial evidence means "more than a mere scintilla," 3 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 4 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 5 (9th Cir. 1975). It is "such relevant evidence as a reasonable 6 mind might accept as adequate to support a conclusion." 7 Richardson, 402 U.S. at 401. The Court must consider the record 8 as a whole, weighing both the evidence that supports and the 9 evidence that detracts from the Commissioner's conclusion; it may 10 not simply isolate a portion of evidence that supports the 11 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 12 Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 13 It is immaterial that the evidence would support a finding 14 contrary to that reached by the Commissioner; the determination 15 of the Commissioner as to a factual matter will stand if 16 supported by substantial evidence because it is the 17 Commissioner s job, and not the Court s, to resolve conflicts in 18 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 19 Cir. 1975). 20 In weighing the evidence and making findings, the 21 Commissioner must apply the proper legal standards. Burkhart v. 22 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 23 review the whole record and uphold the Commissioner's 24 determination that the claimant is not disabled if the 25 Commissioner applied the proper legal standards, and if the 26 Commissioner's findings are supported by substantial evidence. 27 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 28 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 3 1 the Court concludes that the ALJ did not use the proper legal 2 standard, the matter will be remanded to permit application of 3 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 4 Cir. 1987). 5 III. Disability Analysis and Findings 6 In order to qualify for benefits, a claimant must establish 7 that she is unable to engage in substantial gainful activity due 8 to a medically determinable physical or mental impairment which 9 has lasted or can be expected to last for a continuous period of 10 not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). 11 A claimant must demonstrate a physical or mental impairment of 12 such severity that the claimant is not only unable to do the 13 claimant s previous work, but cannot, considering age, education, 14 and work experience, engage in any other kind of substantial 15 gainful work which exists in the national economy. 42 U.S.C. 16 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 17 Cir. 1989). The burden of establishing a disability is initially 18 on the claimant, who must prove that the claimant is unable to 19 return to his or her former type of work; the burden then shifts 20 to the Commissioner to identify other jobs that the claimant is 21 capable of performing considering the claimant's residual 22 functional capacity, as well as her age, education and last 23 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 24 1273, 1275 (9th Cir. 1990). 25 The regulations provide that the ALJ must make specific 26 sequential determinations in the process of evaluating a 27 disability: 1) whether the applicant engaged in substantial 28 gainful activity since the alleged date of the onset of the 4 1 impairment, 20 C.F.R. § 404.1520 (2006);2 2) whether solely on 2 the basis of the medical evidence the claimed impairment is 3 severe, that is, of a magnitude sufficient to limit significantly 4 the individual s physical or mental ability to do basic work 5 activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the 6 basis of medical evidence the impairment equals or exceeds in 7 severity certain impairments described in Appendix I of the 8 regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant 9 has sufficient residual functional capacity, defined as what an 10 individual can still do despite limitations, to perform the 11 applicant s past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 12 5) whether on the basis of the applicant s age, education, work 13 experience, and residual functional capacity, the applicant can 14 perform any other gainful and substantial work within the 15 economy, 20 C.F.R. § 404.1520(f). 16 Here, the ALJ concluded that Plaintiff had a severe 17 impairment of residual chronic low back pain secondary to a 18 laminectomy with fusion at L5-S1 which did not meet or medically 19 equal an impairment listed in 20 C.F.R. Part 404, Subpart P, 20 Appendix I. (A.R. 19.) Plaintiff retained the residual functional 21 capacity (RFC) to lift and carry ten pounds and stand and/or walk 22 occasionally.3 (A.R. 19.) The ALJ concluded that the limitation 23 of standing and/or walking no more than two hours in an eight- 24 hour day, imposed by consultative internist Dr. Tahir Hassan and 25 26 27 28 2 All references are to the 2006 version of the Code of Federal Regulations unless otherwise noted. 3 Occasionally means occurring from very little up to one-third of the time. Soc. Sec. Ruling 83-10 at 5. 5 1 state agency medical consultant Dr. Murray Mitts on October 5, 2 2004, resulted in Plaintiff s having a sedentary RFC. 3 112, 20-21.) Apparently the ALJ accepted the opinions of those 4 physicians as to Plaintiff s RFC. The doctors had also opined 5 that Plaintiff could only occasionally stoop, crouch, kneel, 6 crawl, climb, and balance. (A.R. 20, 109 [Dr. Hassan opined that 7 Plaintiff had otherwise unspecified postural limitations for 8 climbing, balancing, stooping, kneeling, crouching, and crawling 9 due to his back pain], 113.) Plaintiff had no past relevant work, 10 but as a younger individual with a limited education, the ability 11 to communicate in English, and the RFC for a full range of 12 sedentary work, there were sufficient jobs existing for 13 Plaintiff, and a finding that he was not disabled was directed by 14 Medical-Vocational Rule 201.18. (A.R. 20-21.) 15 16 17 (A.R. 109, IV. Factual Summary A. Plaintiff s Testimony Plaintiff, who completed eleventh grade, had a driver s 18 license, drove about two days a week for a mile or two, but had 19 problems with his leg cramping and pain in his lower back, which 20 were his worst physical problems (A.R. 166-67.) About two days 21 out of the week Plaintiff felt good, but at other times he was 22 unable to move around, so Plaintiff sat and relaxed. (A.R. 179- 23 80.) He tried to work around the house despite the doctor s 24 saying not to do so; he helped his wife with the laundry for a 25 short period of about half an hour; he did activities about 26 fifteen minutes at a time before having to stop. (A.R. 180.) On 27 most days he would lie down for most of the day. Most of the time 28 he could sleep at night, but sometimes his back would cramp, and 6 1 he would toss and turn. (A.R. 181.) 2 Plaintiff had two back surgeries in 1984 and 1985, a 3 laminectomy and then a fusion at the site of the L5 disk, which 4 helped for quite a while. However, recently Plaintiff had 5 suffered daily burning, cramping, and pain in his lower back, 6 right hip, and down his right leg. (A.R. 169.) He could lift 7 maybe five pounds, but he was not sure. (A.R. 175.) His bad leg 8 was three inches smaller around than the other. (A.R. 174-75.) 9 Bending and touching the floor were too painful to try; Plaintiff 10 could sit ten or fifteen minutes before having to change 11 position, stand up, or lie down for a few minutes. (A.R. 172-73.) 12 If Plaintiff took medication, it would be about half an hour or 13 so before he could sit for another fifteen minutes. (A.R. 174.) 14 He had problems standing for a long time, such as for half an 15 hour, and it would cause cramping and discomfort, so Plaintiff 16 then would sit down to take the weight off, and after about 17 fifteen minutes could stand back up. (A.R. 175.) He could walk 18 around his yard, which sometimes helped and sometimes made it 19 worse. (Id.) His doctor filled out a paper that said no twisting 20 from side to side, pushing or pulling with the arms, lifting, or 21 bending; he could raise his arms to head level but no further 22 because of cramping. (A.R. 176.) 23 Plaintiff was in prison between February 18, 2003, and May 24 15, 2004; he had no job but was in the general population and had 25 been cleared for food handling. (A.R. 184-86.) 26 Plaintiff had seen Dr. Samarro, who treated him for blood 27 pressure, and in April 2006 Plaintiff had an MRI and had seen a 28 specialist, Dr. King, who had given Plaintiff pain medication, 7 1 which Plaintiff said was Vicodin that he took about three times a 2 week; the other pain medication made him nauseous, so he did not 3 take it, and the Vicodin seemed to cause his close-up vision to 4 worsen. (A.R. 168-69, 177, 179, 181.) Plaintiff s doctor did not 5 recommend surgery because he said it would cause more damage. 6 (A.R. 174.) Plaintiff also testified to having been in the 7 hospital for his back several times since he was released from 8 incarceration. (A.R. 185-86.) He did not get pain medication 9 between 1999 and 2004. (A.R. 187.) 10 11 B. Medical Evidence An x-ray of the lumbar spine taken July 25, 1996, reflected 12 a negative study except for slight narrowing at the L5-S1 13 interspace. (A.R. 150.) 14 John G. Nork, M.D., performed an orthopedic consultative 15 examination of Plaintiff on July 25, 1996. Plaintiff complained 16 of persistent but not constant pain in his back, aggravated by 17 prolonged standing and sitting, with occasional numbness and 18 cramping of his right leg without real, true radiation of pain. 19 Plaintiff took Flexeril and Tylenol with Codeine. The exam 20 revealed normal station, gait, cervical spine range of motion, 21 upper and lower extremities, hand grip strength, motor strength, 22 and sensation. Dr. Nork found restricted flexion, extension, and 23 bending of the lumbar spine; tenderness in the region of a well- 24 healed surgical scar in the midline over L3 through S1; and spasm 25 in the lumbar paraspinal muscles. Straight leg raising was 26 normal. X-rays of the lumbosacral spine revealed narrowing of the 27 L5-S1 interspace. The impression was status post lumbar 28 laminectomy with residual musculoligamentous sprain/strain. Dr. 8 1 Nork stated that Plaintiff had minimal residual findings 2 following his injury and surgery, and that he was capable of 3 performing some type of useful function. Plaintiff could 4 occasionally lift and carry twenty pounds, frequently lift and 5 carry ten pounds, stand and/or walk six hours in an eight-hour 6 workday, and sit continuously during the work day with breaks 7 every two hours without restriction. (A.R. 151-56.) 8 9 Records from the California Department of Corrections reflected that in July 2003, Plaintiff was classified as 10 medically eligible for full duty and had been cleared for food 11 handling. (A.R. 104.) 12 Tahir Hassan, M.D., a diplomate of the American Board of 13 Internal Medicine, performed a comprehensive internal medicine 14 evaluation of Plaintiff for the Department of Social Services in 15 August 2004. (A.R. 107-09.) He reported Plaintiff s complaints of 16 back pain for twenty years that radiated to the left leg, and 17 cramping pain in the left leg after walking, for which Plaintiff 18 took Motrin. Examination of the motor system was normal with no 19 wasting, good tone with power of 5/5 in all extremities, normal 20 hand grip of 5/5 bilaterally, and normal gait. The sensory exam 21 was grossly intact, and reflexes were 2+ bilaterally with normal 22 Babinski. Extension of the cervical spine and extension and 23 flexion of the shoulder, elbow, knee, ankle, and wrist were 24 within normal limits; flexion of the lumbar spine was restricted 25 to 120 degrees, and forward flexion of the hip was restricted to 26 120 degrees on the left and 110 degrees to the right. Dr. 27 Hassan s diagnosis was chronic back pain secondary to surgery, 28 and mild uncontrolled hypertension. Dr. Hassan opined that based 9 1 on the exam, Plaintiff was limited to lifting fifty pounds 2 occasionally and twenty-five pounds frequently, standing and 3 walking with normal breaks for a total of about two hours in an 4 eight-hour workday, and sitting for a total of about six hours in 5 an eight-hour workday, with postural limitations for climbing, 6 balancing, stooping, kneeling, crouching, and crawling due to 7 back pain, with no other limitations. (A.R. 107-109, 109.) 8 9 Non-examining state agency medical consultant Murray Mitts, M.D., opined on October 5, 2004, and another such consultant 10 confirmed on March 8, 2005, that Plaintiff s low back pain 11 resulted in an ability occasionally to lift and/or carry fifty 12 pounds, frequently lift and/or carry twenty-five pounds, stand 13 for at least two hours in an eight-hour day, sit about six hours 14 in an eight-hour workday, engage in unlimited pushing and 15 pulling, and occasionally climb, balance, stoop, kneel, crouch, 16 and crawl. (A.R. 111-18, 125-26.) 17 On December 3, 2004, Dr. Satwant Samrao, M.D., reported that 18 Plaintiff visited him for a blood pressure recheck and for pain 19 medications. (A.R. 122.) Dr. Samrao noted that Plaintiff had last 20 been seen in June 1999, and progress notes confirmed the time 21 interval. (A.R. 122-23.) The doctor assessed chronic low back 22 pain after a laminectomy in 1984 with fusion of L5-S1, and 23 hypertension; the plan was to continue on 100 milligrams of 24 Atenolol daily, Vicodin of five milligrams/500 milligrams every 25 eight hours, and fifteen milligrams of Mobic twice a day. (A.R. 26 122-24.) 27 28 In June 2005, Dr. Samrao examined Plaintiff and found a minimal paraspinal muscle spasm, limited movements, and an old, 10 1 well-healed surgical scar. The assessment was chronic low back 2 pain status post laminectomy with fusion. An x-ray was ordered. 3 Plaintiff was instructed not to smoke because of bronchial 4 asthma, and no pain medication was given. (A.R. 140.) In July 5 2005, Mobic samples and a Vicodin prescription were dispensed. 6 (A.R. 139.) 7 An x-ray taken July 14, 2005, revealed narrowing of the L5- 8 S1 disc without significant reactive change, which the 9 radiologist thought was developmental. There was no reactive 10 change posteriorly of significance in the facets, and no change 11 from the prior exam of January 12, 2005. (A.R. 138.) 12 In August 2005, Dr. Samrao filled out disability papers, 13 scheduled Plaintiff for an MRI, and stated that it would more 14 than likely be normal, after which Plaintiff would be released to 15 work. (A.R. 137.) Dr. Samrao opined that Plaintiff had a chronic 16 condition that began on December 18, 2004, that rendered him 17 unable to work but did not require the care of someone in the 18 home. (A.R. 127.) 19 On March 8, 2006, an MRI of the lumbar spine with and 20 without contrast revealed normal curvature, normal promontory 21 angle, and normal height of disc spaces and vertebral bodies. 22 There was posterior disc bulging on the sagittal view at L5-S1 23 which was impacting the CSF column. There was also a right 24 paracentral disc extrusion impacting the right exiting and 25 central nerve root, with the nerve root displaced and the thecal 26 sac on the right side being flattened. (A.R. 135.) In the axial 27 projection, there was central disc bulging at L4-L5 impacting the 28 CSF column and the dural sac, but the neural foramina were 11 1 patent, and the exiting nerve roots were intact. The impression 2 was extruded disc in the right paracentral area impacting the 3 right central and most likely the exiting nerve root; however, it 4 was noted that Plaintiff s symptomatology was on the left side. 5 (A.R. 135.) 6 On March 23, 2006, Dr. Samrao reviewed the MRI results with 7 Plaintiff. Dr. Samrao noted the prolapsed disc right central, 8 paracentral area with impact in the right central canal and most 9 likely the exiting nerve roots; however, he noted that Plaintiff 10 had symptoms on the left side. The assessment was mild prolapsed 11 intervertebral disc. Plaintiff was counseled, no prescription was 12 written, and Dr. Samrao concluded, The patient can go to work. 13 (A.R. 134.) 14 Notes of four examinations of Plaintiff by Henry Ho Kang, 15 M.D., Ph.D., appear in the record and reflect examinations 16 between April 2006 through August 2006. (A.R. 129-30, 157-58.) 17 However, most of the notes are illegible. Dr. Kang prescribed 18 various medications, including Relefen, Backlofen, and Vicodin, 19 for Plaintiff s back condition. He also recommended a home 20 exercise program for one month. (A.R. 157.) There does not appear 21 to be an assessment of Plaintiff s capacities and functional 22 limitations by Dr. Kang in the record. 23 V. Listed Impairment 24 The ALJ stated that the impairments listed which were most 25 nearly applicable to Plaintiff s medically determinable 26 impairment, particularly § 1.02 (major dysfunction of a joint due 27 to any cause), had been reviewed and were not met or medically 28 equaled under the facts of the case. 12 1 Plaintiff argues that his severe impairment did equate to 2 the listing at § 1.04 because of objective medical evidence, 3 namely, the MRI of Plaintiff s lumbar spine ordered by treating 4 physician Dr. Samrao in March 2006. Dr. Cicely Roberts, M.D., 5 opined that the MRI showed posterior disc bulging on the sagittal 6 view at L5-S1 which was impacting the CSF (cerebrospinal fluid) 7 column, which constitutes the central canal of the spinal cord; 8 it also revealed central disc bulging at L4-L5 that was impacting 9 the CSF column and the dural sac; however, the neural foramina 10 were patent, and the exiting nerve roots were intact. (A.R. 135.) 11 Further, at L5-S1 there was a right paracentral disc extrusion 12 impacting the right exiting and central nerve root; the nerve 13 root was displaced, and the thecal sac on the right side was 14 flattened. The impression was an extruded disc in the right 15 paracentral area impacting the right central and mostly likely 16 the exiting nerve root. It was also noted that Plaintiff s 17 symptoms were on the left side. (A.R. 135.) 18 19 20 21 22 23 24 25 26 27 28 Plaintiff argues that this evidence meets the listing at 1.04, which states: Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture) resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With: A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by 13 1 6 appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every two hours; or C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b. 7 It is Plaintiff s burden to establish that his impairment 8 met a listing. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). 9 Mere diagnosis of a listed impairment is not sufficient to 2 3 4 5 10 sustain a finding of disability; there must also be the findings 11 required in the listing. Young v. Sullivan, 911 F.2d 180, 183 12 (9th Cir. 1990); 20 C.F.R. § 416.925(d). Generally, specific 13 medical findings are needed to support the diagnosis and the 14 required level of severity. 20 C.F.R. §§ 404.1525(c)-(d), 15 416.925(c). The Commissioner is not required to state why a 16 claimant failed to satisfy every different section of the listing 17 of impairments; rather, it is sufficient to evaluate the evidence 18 upon which the ultimate factual conclusions are based. Otherwise, 19 an undue burden would be put on the social security disability 20 process. Gonzales v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 21 1990). 22 Defendant argues that Plaintiff has failed to establish that 23 his impairment resulted in a compromised nerve root or spinal 24 cord, spinal arachnoiditis, or lumbar spinal stenosis resulting 25 in pseudoclaudication. It is unclear whether compromise of a 26 nerve root or spinal cord is established by the noted impacting 27 effect of the bulging disc at L5-S1 on the CSF column, 28 accompanied by right paracentral disc extrusion impacting the 14 1 right exiting and central nerve root combined with displacement 2 of the nerve root and flattening of the thecal sac. (A.R. 135.) 3 However, even if Plaintiff had established compromise of a 4 nerve root within the meaning of Listing 1.04, Plaintiff failed 5 to establish the additional requirements of Listing 1.04 (A), 6 (B), or (C). Plaintiff did not present findings of (C), lumbar 7 spinal stenosis resulting in pseudoclaudication established by 8 findings on medically acceptable imaging; likewise, Plaintiff did 9 not present evidence of manifestation of stenosis by chronic 10 nonradicular pain and weakness and resultant inability to 11 ambulate effectively. Plaintiff did not present findings of (B), 12 spinal arachnoiditis confirmed by operative note or pathology 13 report of tissue biopsy. Finally, Plaintiff did not present 14 evidence supporting a finding of evidence of nerve root 15 compression in (A), characterized by neuro-anatomic distribution 16 of pain, limitation of motion of the spine, or motor loss 17 (atrophy with associated muscle weakness or muscle weakness) 18 accompanied by sensory or reflex loss. Listing 1.04(A) further 19 requires that if there is involvement of the lower back, there 20 must be positive straight leg raising tests (sitting and supine). 21 Plaintiff failed to provide evidence of the positive test 22 results. 23 The Court considers the opinions of Plaintiff s treating 24 physicians, who concluded that Plaintiff was capable of working. 25 In addition, the Court acknowledges that the state agency medical 26 consultants signed opinions in which they concluded that 27 Plaintiff could work. Such opinions constitute evidence that the 28 Commissioner properly considered the question of medical 15 1 equivalence. See, Soc. Sec. Ruling 96-6p at p. 4 (the signature 2 of a state agency medical or psychological consultant ensures 3 that the consideration has been given by the expert to the 4 question of medical equivalence at the initial and 5 reconsideration levels of administrative review). 6 In summary, the Court concludes that there is substantial 7 evidence to support a finding that Plaintiff s impairment did not 8 meet or medically equal a listing. 9 VI. Subjective Complaints 10 Defendant interprets Plaintiff s brief as raising the issue 11 of whether or not the ALJ made proper credibility findings. 12 (Deft. s Brief p. 7, Pltf. s Brief p. 3.) It does not appear to 13 the Court that this issue was raised. Nevertheless, in an 14 abundance of caution, the Court will address the ALJ s handling 15 of Plaintiff s subjective complaints. 16 The ALJ expressly found that Plaintiff s impairment could 17 reasonably be expected to produce the alleged symptoms, but that 18 Plaintiff s statements concerning the intensity, persistence, and 19 limiting effects of the symptoms were not entirely credible. 20 (A.R. 20.) This adverse credibility finding must be based on 21 clear and convincing reasons. Carmickle v. Commissioner, Social 22 Security Administration,, 533 F.3d 1155, 1160 (9th Cir. 2008). 23 Here, after the ALJ summarized Plaintiff s subjective 24 complaints (A.R. 20), she stated various clear and convincing 25 reasons, supported by substantial evidence, for rejecting the 26 extent of the claimed symptoms (id.). 27 28 The ALJ relied on Plaintiff s not working in prison, even though he was cleared for full duty with no restrictions in the 16 1 general population. (A.R. 104, 106.) A claimant's extremely poor 2 work history shows that the claimant has little propensity to 3 work and negatively affects his or her credibility regarding any 4 inability to work. Thomas v. Barnhart, 278 F.3d 947, 959 (9th 5 Cir. 2002). 6 The ALJ relied on the inconsistency of Plaintiff s 7 complaints with the opinions of his treating physicians, 8 including the opinion of Dr. Samrao that Plaintiff could work 9 based on symptomatology on the left side, and the doctor s having 10 counseled Plaintiff and filled no prescriptions. (A.R. 20, 134- 11 37.) She also expressly relied on the inconsistency or 12 discrepancy of the objective medical evidence, which showed an 13 extruded disc impacting the right central and most likely the 14 exiting nerve root, and Plaintiff s symptoms, which were on the 15 left side. (A.R. 20.) The ALJ also noted the inconsistency of 16 Plaintiff s claim of having seen Dr. Samrao from 1999 until he 17 was incarcerated in February 2003 with the doctor s records. 18 (A.R. 20.) The ALJ also mentioned the x-ray of July 2005 which 19 reflected narrowing of the L5-S1 disc without significant 20 reactive change. (A.R. 20, 138.) Finally, the ALJ noted that Dr. 21 Kang had seen Plaintiff four times and yet had prescribed only 22 non-invasive treatment (medication) and had not recommended 23 referral to any specialists. (A.R. 20.) 24 It is permissible to rely upon opinions of physicians 25 concerning the nature, severity, and effect of the symptoms of 26 which the claimant complains. Thomas v. Barnhart, 278 F.3d 947, 27 958-59 (9th Cir. 2002). A doctor s opinion that a claimant can 28 work is appropriately considered. Moncada v. Chater, 60 F.3d 521, 17 1 524 (9th Cir. 1995). Further, In this circuit, valid criteria for 2 evaluating subjective complaints include weak objective support 3 for claims and inconsistent reporting. Tidwell v. Apfel, 161 F.3d 4 599, 601-02 (9th Cir. 1998). Inconsistent statements are matters 5 generally considered in evaluating credibility and are properly 6 factored in evaluating the credibility of a claimant with respect 7 to subjective complaints. Thomas v. Barnhart, 278 F.3d 947, 958- 8 59 (9th Cir. 2002). The ALJ may consider whether the Plaintiff s 9 testimony is believable or not. Verduzco v. Apfel, 188 F.3d 1087, 10 1090 (9th Cir. 1999). Included in the factors that an ALJ may 11 consider are inconsistencies in the claimant s testimony or 12 between the claimant s testimony and the claimant s conduct. 13 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Thomas v. 14 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Although the 15 inconsistency of objective findings with subjective claims may 16 not be the sole reason for rejecting subjective complaints of 17 pain, Light v. Chater, 119 F.3d 789, 792 (9th Cir. 1997), it is 18 one factor which may be considered with others, Moisa v. 19 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Morgan v. 20 Commissioner 169 F.3d 595, 600 (9th Cir. 1999). An ALJ may rely 21 on the conservative nature of treatment or a lack of treatment in 22 rejecting a claimant s subjective complaint of pain. Johnson v. 23 Shalala 60 F.3d 1428, 1433-34 (9th Cir. 1995). 24 The Court has reviewed all the reasons stated by the ALJ, 25 and the Court concludes that the ALJ cited clear and convincing 26 reasons for rejecting Plaintiff s subjective complaints regarding 27 the intensity, duration, and limiting effects of his symptoms, 28 and that the ALJ s reasons were properly supported by the record 18 1 and sufficiently specific to allow this Court to conclude that 2 the ALJ rejected the claimant's testimony on permissible grounds 3 and did not arbitrarily discredit Plaintiff s testimony. 4 5 VI. Expert Opinions A. Substantial Evidence 6 Plaintiff attacks the ALJ s conclusion as to Plaintiff s 7 residual functional capacity and ability to adjust to other work. 8 9 The ALJ concluded that Plaintiff s RFC was for a full range of sedentary work; he could lift and carry ten pounds and stand 10 and/or walk occasionally (up to one-third of the time). (A.R. 19, 11 21.) Sedentary work is defined by the regulations as follows: 12 Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 13 14 15 16 17 18 20 C.F.R. § 404.1567(a). The ALJ s conclusion was supported by the opinions of 1) 19 Plaintiff s treating physician, Dr. Samrao, who concluded that 20 Plaintiff could work without any stated limitations; 2) the 21 consulting internist, Dr. Hassan, who found a greater lifting and 22 carrying capacity but articulated a limitation to two hours of 23 standing and walking as well as postural limitations; and 3) the 24 state agency physicians, who also found greater lifting capacity 25 but recognized the two-hour per day standing limit as well as the 26 postural limitations. 27 28 The experts opinions were based on and were consistent with substantial, objective medical evidence of record; they were 19 1 well-supported by findings reached pursuant to medically 2 acceptable clinical and laboratory diagnostic techniques. Such 3 opinions of treating and examining physicians, and of non- 4 examining state agency medical consultants, constitute 5 substantial evidence. Miller v. Heckler, 770 F.2d 845, 849 (9th 6 Cir.1985); accord Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 7 Cir.1995). 8 9 B. Adjusting to Other Work At step five, Plaintiff objects to the ALJ s summary finding 10 that other jobs existed in the national economy without 11 identifying what those jobs were. He also objects that the ALJ s 12 conclusion that Plaintiff would adjust to other work was not 13 supported by substantial evidence. 14 The ALJ concluded that Plaintiff could perform the full 15 range of sedentary work. Being able to stand and walk only 16 occasionally does not conflict with an ability to perform 17 essentially the full range of sedentary work. 20 C.F.R. § 18 404.1567(a). 19 The ALJ did not expressly reject the postural limitations 20 (only occasional climbing, balancing, stooping, kneeling, 21 crouching, and crawling) assessed by the consulting, examining 22 physician and the state agency physicians. However, even if 23 adopted and fully credited, such postural limitations are not 24 inconsistent with an ability to perform the full range of 25 sedentary work. Postural limitations related to climbing, 26 balancing, kneeling, crouching, or crawling would not usually 27 erode the occupational base for a full range of sedentary work. 28 Soc. Sec. Ruling 96-9p at p. 6. Limitations to only occasional 20 1 climbing and balancing ordinarily would not have a significant 2 impact on the broad world of work. Soc. Sec. Ruling 85-15 at p. 3 6. A limitation to occasional stooping (and, logically, to only 4 occasional crouching, a progressively more strenuous form of 5 bending parts of the body) leaves the sedentary occupational base 6 virtually intact. Id.; Soc. Sec. Ruling 96-9p at p. 7. Likewise, 7 crawling and kneeling, which are relatively rare activities even 8 in arduous work, would be of little significance in the broad 9 world of work or within sedentary work. Id. 10 Where an ALJ s error consists of a failure to discuss 11 evidence favorable to the claimant, a reviewing court cannot 12 consider the error harmless unless it can confidently conclude 13 that no reasonable ALJ, when fully crediting the testimony, could 14 have reached a different disability determination. Stout v. 15 Commissioner, 454 F.3d 1050, 1056 (9th Cir. 2006). Here, even if 16 the postural limitations of the other physicians were fully 17 credited, the Court concludes with confidence that no reasonable 18 ALJ could have reached a different disability determination. 19 With respect to Plaintiff s challenge to the ALJ s failure 20 to identify specific jobs that he could perform, the Court notes 21 that it is sufficient to determine that a claimant could perform 22 essentially a full range of work (here, the full range of 23 sedentary work) and then apply the grids, or Medical-Vocational 24 Rules, as a basis or framework for decision. It is the 25 Defendant s burden to show that Plaintiff could perform other 26 work existing in significant numbers in the national economy. 27 Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). 28 Defendant may meet this burden either by obtaining the opinion of 21 1 the VE or by relying on the medical-vocational guidelines (the 2 Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, 3 app. 2), which constitute administrative notice of the existence 4 of jobs for persons with specified limitations. Id. at 1099. When 5 the grids are applicable, the Secretary may obtain a directed 6 conclusion of nondisability and may take administrative notice 7 that jobs exist in the national economy that a claimant can 8 perform. Heckler v. Campbell, 461 U.S. 458, 461-462. The 9 guidelines may only be applied when they accurately reflect a 10 claimant s limitations. Desrosiers v. Secretary of Health & Human 11 Services, 846 F.2d 573, 576-77 (9th Cir. 1988). If a 12 nonexertional limitation significantly limits the range of work 13 one can perform, mechanical application of the grids is 14 inappropriate, and a VE is required. Tackett v. Apfel, 180 F.3d 15 1194, 1102 (9th Cir. 1999). Where nonexertional limitations are 16 found not to significantly limit a claimant s exertional 17 capacity, then use of the grids is appropriate. Razey v. Heckler, 18 785 F.2d 1426, 1430 (9th Cir. 1986), as amended, 794 F.2d 1348; 19 Odle v. Heckler, 707 F.2d 439, 440 (9th Cir.1983). 20 21 22 Here, as previously discussed, the use of Medical-Vocational Rule 201.18 (A.R. 21) by the ALJ was appropriate. Finally, with respect to Plaintiff s ability to adjust to 23 other work, Plaintiff argues that he had no transferable job 24 skills, and the ALJ made no finding that Plaintiff had such 25 skills. However, the ALJ found that Plaintiff did not have any 26 past relevant work and that thus, transferability of job skills 27 was not an issue. (A.R. 21.) This comports with the pertinent 28 regulatory law, 20 C.F.R. §§ 404.1568(d), 404.1565(a). 22 1 Transferable skills cannot be learned from work that is not 2 sufficient to qualify as past relevant work. Regulations provide 3 that work experience is relevant when it was performed in the 4 past fifteen years, lasted long enough for a plaintiff to learn 5 to do it, and was substantial gainful activity; if a plaintiff 6 has no work experience or has only worked off-and-on or for 7 brief periods of time during the fifteen-year period, the 8 activity will not generally be considered past relevant work. 20 9 C.F.R. § 404.1565(a). 10 VII. Disposition 11 Based on the foregoing, the Court concludes that the ALJ s 12 decision was supported by substantial evidence in the record as a 13 whole and was based on the application of correct legal 14 standards. 15 Accordingly, the Court AFFIRMS the administrative decision 16 of the Defendant Commissioner of Social Security and DENIES 17 Plaintiff s Social Security complaint. 18 The Clerk of the Court IS DIRECTED to enter judgment for 19 Defendant Michael J. Astrue, Commissioner of Social Security, 20 and against Plaintiff Garth Noli Crane. 21 22 IT IS SO ORDERED. 23 Dated: icido3 April 6, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 23

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